ROJER MATHEW v. SOUTH INDIAN BANK LTD. & ORS.

143Copy pinpoint143. The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain (supra), L Chandra Kumar (supra), R. Gandhi (supra), Madras Bar Association (supra) and Gujarat Urja Vikas (supra) undoubtedly bind the delegate and mandatorily requires the delegate under Section 184 to act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the statutes. It must also be emphasised that the Finance Act, 2017 nowhere indicates that the legislature had intended to differ from, let alone make amendments, to remove the edifice and foundation of such decisions by enacting the Finance Act. Indeed, the learned Attorney General was clear in suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this Court in earlier decisions.

144Copy pinpoint144. Independence of a quasi-judicial authority like the tribunal highlighted in the above decisions would be, therefore, read as the policy and guideline applicable. Principle of independence of judiciary/tribunal has within its fold two broad concepts, as held in Supreme Court Advocates-On-Record Association and Another v. Union of India40 {See paragraph 714}, (i) independence of an individual judge, that is, decisional independence; and (ii) independence of the judiciary or the Tribunal as an institution or an organ of the State, that is, functional independence. Individual independence has various facets which include security of tenure, procedure for renewal, terms and conditions of service like salary, allowances, etc. which should be fair and just and which should be protected and not varied to his/her disadvantage after appointment. Independence of the institution refers to sufficient degree of separation from other branches of the government, especially when the branch is a litigant or one of the parties before the tribunal. Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres – economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence.

145Copy pinpoint145. Further, cursory examination of the specified enactments mentioned in column (3) of the Eighth Schedule reveals that most 40 H (2016) 5 SCC 1

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enactments did not stipulate the manner of appointment, terms of office, salaries and allowances, resignation, removal, that is, the terms and conditions of service, which stipulations are delegated and they are not part of the principal enactment. For example, sub-section (1) of Section 252 of the Income Tax Act, 1961 states that the Central Government may constitute the Appellate Tribunal consisting of as many judicial and accountant members as it thinks fit to exercise the powers and discharge the functions prescribed by the Act. Sub-sections (3) and (4) state that the Central Government shall ordinarily appoint a judicial Member as the President and may appoint one or more members as Vice President or Senior Vice President. Sub-section (2) prescribes the eligibility requirements for being a judicial member and sub-section (2A) stipulates the eligibility requirements for being an administrative member. The Income Tax Act does not prescribe or stipulate manner or method for selection or terms and conditions of service. This is equally true for the Appellate Tribunal constituted under the Central Excise Act.

146Copy pinpoint146. Wanchoo, CJ. in The Municipal Corporation of Delhi D (supra) had observed: “13. The question as to the limits of permissible delegation of legislative power by a legislature to a subordinate authority has come before this Court in a number of cases and the law as laid down by this Court is not in doubt now. Considering the complexity of modern life it is recognised on all hands that legislature cannot possibly have time to legislate in every minute detail. That is why it has been recognised that it is open to the legislature to delegate to subordinate authorities the power to make ancillary rules for the purpose of carrying out the intention of the legislature indicated in the law which gives power to frame such ancillary rules. The matter came before this Court for the first time In re The Delhi Laws Act, 1912 and it was held in that case that it could not be said that an unlimited right of delegation was inherent in the legislative power itself. This was not warranted by the provisions of the Constitution, which vested the power of legislation either in Parliament or State legislatures and the legitimacy of delegation depended upon its being used as an ancillary measure which the legislature considered to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own H

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A hands the essential legislative function. Exactly what constituted “essential legislative function”, it was held further, was difficult to define in general terms, but this much was clear that the essential legislative function must at least consist of the determination of the legislative policy and its formulation as a B binding rule of conduct. Thus where the law passed by the legislature declares the legislative policy and lays down the standard which is enacted into a rule of law, it can leave the task of subordinate legislation which by its very nature is ancillary to the statute to subordinate bodies i.e. the making of rules, regulations or bye-laws. The subordinate authority must do so within the frame-work of the law which makes the delegation, and such subordinate legislation has to be consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law. Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. xx xx xx

28. A review of these authorities therefore leads to the conclusion that so far as this Court is concerned the principle is well established that essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a G standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further it appears H to us that the nature of the body to which delegation is made is

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also a factor to be taken into consideration in determining whether A there is sufficient guidance in the matter of delegation.”

147Copy pinpoint147. Referring to The Municipal Corporation of Delhi (supra), this Court in Keshav Lal, had observed: “45. ... The Court held that there was no impermissible delegation of legislative power. Hidayatullah, J. speaking for himself and for B Ramaswami, J. agreed with the conclusion reached at by Wanchoo, C.J., though on slightly different reasons.”

148Copy pinpoint148. On examining the Constitutional scheme, the statutes which had created tribunals and the precedents of this Court laying down attributes of independence of tribunals in different facets, we do not think that the power to prescribe qualifications, selection procedure and service conditions of members and other office holders of the tribunals is intended to vest solely with the Legislature for all times and purposes. Policy and guidelines exist. Subject to aforesaid, the submission of learned Attorney General that Section 184 was inserted to bring uniformity and with a view to harmonise the diverse and wide-ranging qualifications and methods of appointment across different tribunals carries weight and, in our view, needs to be accepted.

149Copy pinpoint149. Cautioning against the potential misuse of Section 184 by the executive, it was vehemently argued by the learned counsel for the petitioner(s) that any desecration by the Executive of such powers threatens and poses a risk to the independence of the tribunals. A mere possibility or eventuality of abuse of delegated powers in the absence of any evidence supporting such claim, cannot be a ground for striking down the provisions of the Finance Act, 2017. It is always open to a Constitutional court on challenge made to the delegated legislation framed by the Executive to examine whether it conforms to the parent legislation and other laws, and apply the “policy and guideline” test and if found contrary, can be struck down without affecting the constitutionality of the rule making power conferred under Section 186 of the Finance Act, 2017. G ISSUE III: IF SECTION 184 IS VALID, WHETHER TRIBUNAL, APPELLATE TRIBUNAL AND OTHER AUTHORITIES (QUALIFICATIONS, EXPERIENCE AND OTHER CONDITIONS OF SERVICE OF MEMBERS) RULES, 2017 ARE IN CONSONANCE H

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A WITH THE PRINCIPAL ACT AND VARIOUS DECISIONS OF THIS COURT ON FUNCTIONING OF TRIBUNALS?

150Copy pinpoint150. Given that the Central Government has formulated the Tribunal, Appellate Tribunal and other Authorities (Qualifications, B Experience and other Conditions of Service of Members) Rules, 2017, (hereinafter referred to as “the Rules”) under Section 184 of the Finance Act, 2017, it is necessary at this stage to examine whether the Rules conform to the judicial principles inherent in our Constitutional scheme as established by this Court in its earlier dicta. Some salient provisions of the Rules are extracted hereunder: C “Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 xxxxxx

D 3. Qualifications for appointment of Member.— The qualification for appointment of the Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, E Appellate Tribunal or, as the case may be, Authority shall be such as specified in column (3) of the Schedule annexed to these rules.

4. Method of recruitment.— (1) The Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, F Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority shall be appointed by the Central Government on the recommendation of a Search-cum-Selection Committee specified in column (4) of the said Schedule in respect of the Tribunal, Appellate Tribunal G or, as the case may be, Authority specified in column (2) of the said Schedule. (2) The Secretary to the Government of India in the Ministry or Department under which the Tribunal, Appellate Tribunal or, as the case may be, Authority is constituted or established shall be H the convener of the Search-cum-Selection Committee.

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(3) The Search-cum-Selection Committee shall determine its A procedure for making its recommendation. (4) No appointment of Chairman, Chairperson, President, Vice- Chairman, Vice-Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical B Member or Member of the Tribunal, Appellate Tribunal or Authorities shall be invalid merely by reason of any vacancy or absence in the Search-cum-Selection Committee. (5) Nothing in this rule shall apply to the appointment of Chairman, Chairperson, President, Vice-Chairman, Vice-Chairperson, Vice- C President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority functioning as such immediately before the commencement of these rules. D xxxxxxx

6. Resignation by a Member.— A Member may, by writing under his hand addressed to the Central Government, resign his office at any time: E Provided that the Member shall, unless he is permitted by the Central Government to relinquish office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as a successor enters upon his office or until the expiry of his term of office, whichever is the earliest. F

7. Removal of Member from office.— The Central Government may, on the recommendation of a Committee constituted by it in this behalf, remove from office any Member, who — G (a) has been adjudged as an insolvent; or (b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or (c) has become physically or mentally incapable of acting as such a Member; or H

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A (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or (e) has so abused his position as to render his continuance in office prejudicial to the public interest: Provided that where a Member is proposed to be removed on any ground specified in clauses (b) to (e), the Member shall be informed of the charges against him and given an opportunity of being heard in respect of those charges: Provided further that the Chairperson or member of the National Company Appellate Tribunal shall be removed from office in consultation with the Chief Justice of India.

8. Procedure for inquiry of misbehavior or incapacity of the Member.— (1) If a written complaint is received by the Central Government, alleging any definite charge of misbehavior or incapacity to perform the functions of the office in respect of a D Chairman, Vice-Chairman, Chairperson, Vice-Chairperson, President, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member, the Ministry or Department of the Government of India under which E the Tribunal, Appellate Tribunal or, as the case may be, Authority is constituted or established, shall make a preliminary scrutiny of such complaint. (2) If on preliminary scrutiny, the Ministry or Department of the Government of India under which the Tribunal, Appellate Tribunal F or, as the case may be, Authority is constituted or established, is of the opinion that there are reasonable grounds for making an inquiry into the truth of any misbehavior or incapacity of a Chairman, Vice-Chairman, Chairperson, Vice-Chairperson, President, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law G Member, Revenue Member, Technical Member or Member, it shall make a reference to the Committee constituted under rule 7 to conduct the inquiry. (3) The Committee shall complete the inquiry within such time or such further time as may be specified by the Central H Government.

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(4) After the conclusion of the inquiry, the Committee shall submit its report to the Central Government stating therein its findings and the reasons therefor on each of the charges separately with such observations on the whole case as it may think fit. (5) The Committee shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and shall have power to regulate its own procedure, including the fixing of date, place and time of its inquiry.

9. Term of office of Member.— Save as otherwise provided in these rules, the Chairman, Chairperson, President, Vice- C Chairman, Vice-Chairperson, Vice President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or, as the case may be, Member shall hold office for a term as specified in column (5) of the said Schedule and shall hold the office up to such age as specified in column (6) in the D said Schedule from the date on which he enters upon his office and shall be eligible for reappointment.

10. Casual vacancy.— (1) In case of a casual vacancy in the office of,— (a) the Chairman, Chairperson, President, or Presiding Officer E of the Security Appellate Tribunal, the Central Government shall have the power to appoint the senior most Vice-Chairperson or Vice-Chairman, Vice-President or in his absence, one of the Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical F Member, or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority to officiate as Chairperson, Chairman, President or Presiding Officer. (b) the Chairperson of the Debts Recovery Appellate Tribunal, the Central Government shall have power to appoint the G Chairperson of another Debts Recovery Appellate Tribunal to officiate as Chairperson and in case of a casual vacancy in the office of the Presiding Officer of the Debts Recovery Tribunal, the Chairperson of the Debts Recovery Appellate Tribunal shall have power to appoint the Presiding Officer of another Debts Recovery Appellate Tribunal to officiate as Presiding Officer. H

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A 11. Salary and allowances.— (1) The Chairman, Chairperson or President of the Tribunal, Appellate Tribunal or, as the case may be, Authority or the Presiding Officer of the Security Appellate Tribunal shall be paid a salary of Rs. 2,50,000 (fixed) and other allowances and benefits as are admissible to a Central B Government officer holding posts carrying the same pay. (2) The Vice-Chairman, Vice-Chairperson, Vice-President, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or, as the case may be, Member shall be paid a salary C of Rs. 2,25,000 and shall be entitled to draw allowances as are admissible to a Government of India Officer holding Group ‘A’ post carrying the same pay. (3) A Presiding Officer of the Debt Recovery Tribunal or a Presiding Officer of the Industrial Tribunal constituted by the D Central Government shall be paid a salary of Rs. 1,44,200- 2,18,200 and shall be entitled to draw allowances as are admissible to a Government of India officer holding Group ‘A’ post carrying the same pay. (4) In case of a person appointed as the Chairman, Chairperson, E President, Vice-Chairman, Vice-Chairperson, Vice President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member, as the case may be, is in receipt of any pension, the pay of such person shall be reduced by the gross amount of pension drawn by him. F

12. Pension, Gratuity and Provident Fund.— (1) In case of a serving Judge of the Supreme Court, a High Court or a serving Judicial Member of the Tribunal or a member of the Indian Legal Service or a member of an organised Service appointed to the post of the Chairperson, Chairman, President or Presiding Officer G of the Security Appellate Tribunal, the service rendered in the Tribunal, Appellate Tribunal or, as the case may be, Authority shall count for pension to be drawn in accordance with the rules of the service to which he belongs and he shall be governed by the provisions of the General Provident Fund (Central Services) H Rules, 1960 and the Contribution Pension System.

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(2) In all other cases, the Accountant Member, Administrative A Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member shall be governed by the provisions of the Contributory Provident Fund (India) Rules, 1962 and the Contribution Pension System. (3) Additional pension and gratuity shall not be admissible for B service rendered in the Tribunal, Appellate Tribunal or, as the case may be, Authority.

13. Leave.— (1) The Chairman, Chairperson, President, Vice- Chairman, Vice-Chairperson, Vice President, Accountant Member, Administrative Member, Judicial Member, Expert C Member, Law Member, Revenue Member, Technical Member, Presiding Officer or a Member shall be entitled to thirty days of earned Leave for every year of service. (2) Casual Leave not exceeding eight days may be granted to the Chairman, Chairperson, President, Vice-Chairman, Vice- D Chairperson, Vice President, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member or Technical Member, Presiding Officer or a Member in a calendar year. (3) The payment of leave salary during leave shall be governed E by rule 40 of the Central Civil Services (Leave) Rules, 1972. (4) The Chairman, Chairperson, President, Vice-Chairman, Vice- Chairperson, Vice President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member F or Member shall be entitled to encashment of leave in respect of the earned Leave standing to his credit, subject to the condition that maximum leave encashment, including the amount received at the time of retirement from previous service shall not in any case exceed the prescribed limit under the Central Civil Service G (Leave) Rules, 1972.

14. Leave sanctioning authority.— (1) Leave sanctioning authority,— (a) for the Vice-Chairman, Vice-Chairperson, Vice-President, Presiding Officer of the Debts Recovery Tribunal and Industrial H

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A Tribunal, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member shall be Chairman, Chairperson or as the case may be, President; and (b) for the Chairman, Chairperson, Presiding Officer of Security B Appellate Tribunal or President, shall be the Central Government, who shall also be sanctioning authority for Accountant Member, Administrative Member, Judicial Member, Expert Member or Member in case of absence of Chairman, Chairperson, Presiding Officer of Security Appellate Tribunal or President. C (2) The Central Government shall be the sanctioning authority for foreign travel to the Chairman, Chairperson, President, Vice- Chairman, Vice-Chairperson, Vice-President, Accountant Member, Administrative Member, Judicial Member, Expert Member, Technical Member, Presiding Officer or a Member. D xxx

18. Other conditions of service.— (1) The terms and conditions of service of a Chairman, Chairperson, President, Vice- Chairman, Vice-Chairperson, Vice-President, Accountant Member, Administrative Member, Judicial Member, Expert E Member, Technical Member, Presiding Officer or Member with respect to which no express provision has been made in these rules, shall be such as are admissible to a Group ‘A’ Officer of the Government of India of a corresponding status. (2) The Chairman, Chairperson, President, Vice-Chairman, Vice- F Chairperson, Vice-President, Administrative Member, Judicial Member, Expert Member, Technical Member, Presiding Officer or Member shall not practice before the Tribunal, Appellate Tribunal or Authority after retirement from the service of that Tribunal, Appellate Tribunal or, as the case may be, Authority. G (3) The Chairman, Chairperson, President, Vice-Chairman, Vice- Chairperson, Vice-President, Accountant Member, Administrative Member, Judicial Member, Expert Member, Technical Member, Presiding Officer or Member shall not undertake any arbitration work while functioning in these capacities in the Tribunal, H Appellate Tribunal or Authority.

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(4) The Chairman, Chairperson, President, Vice-Chairman, Vice- A Chairperson, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member or Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority shall not, for a period of two years from the date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any person who has been a party to a proceeding before the Tribunal, Appellate Tribunal or, as the case may be, Authority: Provided that nothing contained in this rule shall apply to any employment under the Central Government or a State Government or a local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013). D xxx

20. Power to relax.— Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons.

21. Interpretation.— If any question arises relating to the interpretation of these rules, the decision of the Central Government thereon shall be final.

22. Saving.— Nothing in these rules shall affect reservations, relaxation of age limit and other concessions required to be provided for the Scheduled Castes, Scheduled Tribes, Ex- servicemen and other special categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.” G (A) Composition of Search-cum-Selection Committees

151Copy pinpoint151. The composition of some of the Search-cum-Selection Committees, as provided in the Rules, have been reproduced below illustratively: H

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A “Industrial Tribunal: Search-cum-Selection Committee for the post of the Presiding Officer, - (i) a person to be nominated by the Central Government- chairperson; B (ii) Secretary to the Government of India, Ministry of Labour and Employment- member; (iii) .Secretary to the Government of India to be nominated by the Central Government-member; C (iv) two experts to be nominated by the Central Government- members. Income Tax Appellate Tribunal: (A) Search-cum-Selection Committee for the post of the D President and Vice-President, - (i) a sitting Judge of Supreme Court to be nominated by the Chief Justice of India-chairperson; (ii) the President, Income-tax Appellate Tribunal- member; and E (iii) the Secretary to the Government of India, Ministry of Law and Justice (Department of Legal Affairs)- member. (B) Search-cum-Selection Committee for the Accountant F Member and Judicial Member, – (i) a nominee of the Minister of Law and Justice- chairperson; (ii) Secretary to the Government of India, Ministry of Law and Justice (Department of Legal Affairs)- G member; (iii) President of the Income tax Appellate Tribunal – member; and (iv) such other persons, if any, not exceeding two, as the H Minister of Law and Justice may appoint-member.

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Central Administrative Tribunal: A (A) Search-cum-Selection Committee for the post of Chairman and Judicial Member, – (i) Chief Justice of India or his nominee- chairperson; (ii) Chairman of the Central Administrative Tribunal, B Principal Bench – member; (iii) Secretary to the Government of India, (Department of Personnel and Training)- member; (iv) Secretary to the Government of India, Ministry of Law and Justice -member; C

(v) one expert, to be nominated by the Central Government of India - member. (B) Search-cum-Selection Committee for the post of Administrative Member, – D (a) a person to be nominated by the Central Government - chairperson; (b) Chairman of the, Central Administrative Tribunal – member; E (c) Secretary to the Government of India, (Department of Personnel and Training)- member; (d) Secretary to the Government of India, Ministry of Law and Justice -member; (e) one expert, to be nominated by the Government of F India - member.”

152Copy pinpoint152. Composition of a Search-cum-Selection Committee is contemplated in a manner whereby appointments of Member, Vice- President and President are predominantly made by nominees of the Central Government. A perusal of the Schedule to the Rules shows that G save for token representation of the Chief Justice of India or his nominee in some Committees, the role of the judiciary is virtually absent.

153Copy pinpoint153. We are in agreement with the contentions of the Learned Counsel for the petitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the H

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A doctrine of separation of powers and is an encroachment on the judicial domain. The doctrine of separation of powers has been well recognised and re-interpreted by this Court as an important facet of the basic structure of the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala41, and several other later decisions. The exclusion of the Judiciary from the control and influence of the Executive is not B limited to traditional Courts alone, but also includes Tribunals since they are formed as an alternative to Courts and perform judicial functions.

154Copy pinpoint154. Clearly, the composition of the Search-cum-Selection Committees under the Rules amounts to excessive interference of the Executive in appointment of members and presiding officers of statutory C Tribunals and would undoubtedly be detrimental to the independence of judiciary besides being an affront to the doctrine of separation of powers.

155Copy pinpoint155. In R.K. Jain v. Union of India (supra), a three-Judge Bench of this Court asserted the need for independent system of appointment and administration of Tribunals to maintain public trust in the judiciary while expressing its agony over inefficacy of the working of Tribunals in the country. In addition to discussing the perils of providing direct statutory appeals to the Apex Court from the Tribunals, it was also suggested that there is an imminent need for reform in the manner of recruitment of members of Tribunals to maintain public faith in the institution of judiciary. Adjudication of disputes by technical members should be confined only to cases requiring specialised technical knowledge. [Union of India vs. Madras Bar Association42 and Madras Bar Association vs. Union of India & Anr.43]

156Copy pinpoint156. Subsequently, in its dictum in L. Chandra Kumar v. Union of India (supra), a seven-Judge Bench of this Court noted the observations in the Malimath Committee Report, discussing the administration of the Tribunals established under Article 323-A and Article 323-B of the Constitution. The Malimath Committee Report had pointed out that a Tribunal constituted in substitution of any other Court G should have similar standards of appointment, qualifications and conditions of service, to inspire the confidence of the public at large. Shortcomings in composition, tenure, conditions of service, etc. of the 41 (1973) 4 SCC 225 42 (2010) 11 SCC 1 43 H (2014) 10 SCC 1 [Para 107 & 126]

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Members of Tribunals were also highlighted in the Report as reasons for increased intervention by the Executive in the working of judicial institutions. The relevant extract is reproduced below: “88. …The observations contained in the Report, to this extent they contain a review of the functioning of the Tribunals over a period of three years or so after their institution, will be useful for our purpose. Chapter VIII of the second volume of the Report, “Alternative Modes and Forums for Dispute Resolution”, deals with the issue at length. After forwarding its specific recommendations on the feasibility of setting up “Gram Nyayalayas”, Industrial Tribunals and Educational Tribunals, the Committee has dealt with the issue of Tribunals set up under C Articles 323-A and 323-B of the Constitution. The relevant observations in this regard, being of considerable significance to our analysis, are extracted in full as under: “Functioning of Tribunals D 8.63 Several tribunals are functioning in the country. Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach. The next is their constitution, the power and method of appointment of personnel thereto, the inferior status and the casual method of working. The E last is their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning. For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals. 8.64 Even the experiment of setting up of the Administrative Tribunals under the Administrative Tribunals Act, 1985, has not been widely welcomed. Its members have been selected from all kinds of services including the Indian Police Service. The decision of the State Administrative Tribunals are not appealable except under Article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many H

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A cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established for their abolition. Tribunals — Tests for Including High Court’s Jurisdiction 8.65 A Tribunal which substitutes the High Court as an alternative B institutional mechanism for judicial review must be no less efficacious than the High Court. Such a tribunal must inspire confidence and public esteem that it is a highly competent and expert mechanism with judicial approach and objectivity. What is needed in a tribunal, which is intended to supplant the High C Court, is legal training and experience, and judicial acumen, equipment and approach. When such a tribunal is composed of personnel drawn from the judiciary as well as from services or from amongst experts in the field, any weightage in favour of the service members or expert members and value-discounting D the judicial members would render the tribunal less effective and efficacious than the High Court. The Act setting up such a tribunal would itself have to be declared as void under such circumstances. The same would not at all be conducive to judicial independence and may even tend, directly or indirectly, to influence their decision-making process, especially when the E Government is a litigant in most of the cases coming before such tribunal. (See S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124) The protagonists of specialist tribunals, who simultaneously with their establishment want exclusion of the writ jurisdiction of the High Courts in regard to matters entrusted for adjudication to such tribunals, ought not to overlook these vital and important aspects. It must not be forgotten that what is permissible to be supplanted by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the framework of the tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of decentralisation of administration of justice providing for an alternative institutional mechanism in substitution of the High

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Courts must pass the aforesaid test in order to be constitutionally valid….””

157Copy pinpoint157. We are of the view that the Search-cum-Selection Committee as formulated under the Rules is an attempt to keep the judiciary away from the process of selection and appointment of Members, Vice-Chairman and Chairman of Tribunals. This Court has been lucid in its ruling in Supreme Court Advocates-on-Record Assn. v. Union of India44 (Fourth Judges Case), wherein it was held that primacy of judiciary is imperative in selection and appointment of judicial officers including Judges of High Court and Supreme Court. Cognisant of the doctrine of Separation of Powers, it is important that judicial appointments take place without any influence or control of any other limb of the sovereign. Independence of judiciary is the only means to maintain a system of checks and balances on the working of Legislature and the Executive. The Executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in judicial appointments. D

158Copy pinpoint158. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi- judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are E against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. (B) Qualifications of members and presiding officers F

159Copy pinpoint159. The Rules also prescribe the qualifications for Chairperson, Vice-Chairperson, Member, etc. of both judicial and technical members. A bare perusal of the Rules reveals that while prescribing the qualifications of technical member, the prior dicta of this Court has been ignored by the Central Government inasmuch as the technical members G are being appointed without any adjudicatory experience. The qualifications for appointment as technical member in the Customs, Excise and Service Tax Appellate Tribunal as prescribed under the Rules are illustratively reproduced below: 44 (2016) 5 SCC 1. H

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A “(1) A person shall not be qualified for appointment as President unless, - (a) he is or has been a Judge of a High Court; or (b) he is the member of the Appellate Tribunal. B (2) A person shall not be qualified for appointment as a Judicial Member, unless, - (a) he has for at least ten years held a judicial office in the territory of India; or (b) he has been a member of the Indian Legal Service and C has held a post in Grade-I of that Service or any equivalent or higher post for at least three years; or (c) he has been an advocate for at least ten years. (3) A person shall not be qualified for appointment as a Technical Member unless he has been a member of the Indian Revenue D Service (Customs and Central Excise Service Group ‘A’) and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years.”

160Copy pinpoint160. In addition to this, there has been a blatant dilution of judicial character in appointments whereby candidates without any judicial E experience are prescribed to be eligible for adjudicatory posts such as that of the Presiding Officer. Illustratively, the qualifications for Presiding Officer in Industrial Tribunal as specified in the Rules may be noticed below: “A person shall not be qualified for appointment as Presiding F Officer, unless he, - (a) is, or has been, or is qualified to be, a Judge of a High Court; or (b) he has, for a period of not less than three-years, been G a District Judge or an Additional District Judge; or (c) is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty years in economics, business, commerce, law, finance, management, industry, public affairs, administration, labour relations, industrial disputes H

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or any other matter which in the opinion of the Central A Government is useful to the Industrial Tribunal.”

161Copy pinpoint161. The contentions of the Learned Counsel for petitioner(s) are, therefore, duly accepted by this Court insofar as it is contended that the Rules have an effect of dilution of the judicial character in adjudicatory positions. It has been repeatedly ruled by this Court in a B catena of decisions that judicial functions cannot be performed by technical members devoid of any adjudicatory experience.

162Copy pinpoint162. In Madras Bar Assn. v. Union of India (supra), a five- judge Bench of this Court reiterated the urgent need to monitor the pressure and/or influence of the executive on the Members of the C Tribunals. It was asserted that any Tribunal which sought to replace the High Court must be no less independent or judicious in its composition. It was also clarified that the Members of the Tribunal, replacing any Court, including the High Court must possess expertise in law and shall have appropriate legal experience. Even though Parliament can transfer jurisdiction from the traditional Courts to any other analogous Tribunal, the Tribunal must be manned by members having qualifications equivalent to that of the Court from which adjudicatory function is transferred. Hence, any adjudication transferred to a Technical or Non-Judicial member is a clear act of dilution and an encroachment upon the independence of judiciary. It was further ruled by this Court that even though the legislature has the powers to reorganise or prescribe qualifications for members of Tribunals, it is open for this Court to exercise “judicial review” of the prescribed standards, if the adjudicatory standards are adversely affected. The decision of this Court read as follows: F “105. … It was also sought to be asserted that the tribunal constituted under the enactment being a substitute of the High Court ought to have been constituted in a manner that it would be able to function in the same manner as the High Court itself. Since insulation of the judiciary from all forms of interference even from the coordinate branches of the Government was by G now being perceived as a basic essential feature of the Constitution, it was felt that the same independence from possibility of executive pressure or influence needed to be ensured for the Chairman, Vice-Chairman and Members of the Administrative Tribunal. In recording its conclusions, even though H

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A it was maintained that “judicial review” was an integral part of the “basic structure” of the Constitution yet it was held that Parliament was competent to amend the Constitution, and substitute in place of the High Court another alternative institutional mechanism or arrangement. This Court, however cautioned that it was imperative to ensure that the alternative B arrangement was no less independent and no less judicious than the High Court (which was sought to be replaced) itself. xxx

107. In Union of India v. Madras Bar Assn. [(2010) 11 SCC 1] C , all the conclusions/propositions narrated above were reiterated and followed, whereupon the fundamental requirements which need to be kept in mind while transferring adjudicatory functions from courts to tribunals were further crystallised. It came to be unequivocally recorded that tribunals vested with judicial power (hitherto before vested in, or exercised by courts), should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The members of the tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. Technical members can be appointed to tribunals where technical expertise is essential for disposal of matters, and not otherwise. Therefore it was held that where the adjudicatory process transferred to tribunals did not involve any specialised skill, knowledge or expertise, a provision for appointment of technical members (in addition to, or in substitution of judicial members) would constitute a clear case of delusion and encroachment upon the independence of the judiciary and the “rule of law”. The stature of the members, who would constitute the tribunal, would depend on the jurisdiction which was being transferred to the tribunal. In other words, if the jurisdiction of the High Court was transferred to a tribunal, the stature of the members of the newly constituted tribunal, should be possessed of qualifications akin to the Judges of the High Court. Whereas in case, the jurisdiction and the functions sought to be transferred were being exercised/performed by District Judges, the Members appointed to the tribunal should be possessed of equivalent qualifications and commensurate stature of District

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Judges. The conditions of service of the members should be such that they are in a position to discharge their duties in an independent and impartial manner. The manner of their appointment and removal including their transfer, and tenure of their employment, should have adequate protection so as to be shorn of legislative and executive interference. The functioning of the tribunals, their infrastructure and responsibility of fulfilling their administrative requirements ought to be assigned to the Ministry of Law and Justice. Neither the tribunals nor their members, should be required to seek any facilities from the parent ministries or department concerned. Even though the legislature can reorganise the jurisdiction of judicial tribunals, and can prescribe the qualifications/eligibility of members thereof, the same would be subject to “judicial review” wherein it would be open to a court to hold that the tribunalisation would adversely affect the adjudicatory standards, whereupon it would be open to a court to interfere therewith. Such an exercise would naturally be a part of the checks and balances measures conferred by the Constitution on the judiciary to maintain the rule of “separation of powers” to prevent any encroachment by the legislature or the executive. xxx E 113.2. …The power of discharging judicial functions which was exercised by members of the higher judiciary at the time when the Constitution came into force should ordinarily remain with the court, which exercised the said jurisdiction at the time of promulgation of the new Constitution. But the judicial power could be allowed to be exercised by an analogous/similar court/tribunal with a different name. However, by virtue of the constitutional convention while constituting the analogous court/tribunal it will have to be ensured that the appointment and security of tenure of Judges of that court would be the same as of the court sought to be substituted. This was the express conclusion drawn in Hinds case [Hinds v. R., 1977 AC 195] . In Hinds case, it was acknowledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that H

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A was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional B Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or County Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or County Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service as were available to the Judges of the court sought to be substituted. In the judgments under reference it has also been concluded that a breach of the above constitutional convention could not be excused by good intention (by which the legislative power had been exercised to enact a given law). We are satisfied, that the aforesaid exposition of law is in consonance with the position expressed by this Court while dealing with the concepts of “separation of powers”, the “rule of law” and “judicial review”. In this behalf, reference may be made to the judgments in L. Chandra Kumar case, as also, in Union of India v. Madras Bar Assn. (2010). Therein, this Court has recognised that transfer of jurisdiction is permissible but in effecting such transfer, the court to which the power of adjudication is transferred must be endured with salient characteristics, which were possessed by the court from which the adjudicatory power has been transferred… XXX G

128. There seems to be no doubt, whatsoever, that the Members of a court/tribunal to which adjudicatory functions are transferred must be manned by Judges/members whose stature and qualifications are commensurate to the court from which the adjudicatory process has been transferred. This position is H recognised the world over. The constitutional conventions in

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respect of Jamaica, Ceylon, Australia and Canada, on this aspect of the matter have been delineated above. The opinion of the Privy Council expressed by Lord Diplock in Hinds case, has been shown as being followed in countries which have Constitutions on the Westminster model. The Indian Constitution is one such constitution. The position has been clearly recorded while interpreting Constitutions framed on the above model, namely, that even though the legislature can transfer judicial power from a traditional court to an analogous court/tribunal with a different name, the court/tribunal to which such power is transferred should be possessed of the same salient characteristics, standards and parameters, as the court the power whereof was being transferred. It is not possible for us to accept that Accountant Members and Technical Members have the stature and qualification possessed by the Judges of High Courts.”

163Copy pinpoint163. We concur with the above which reiterates the consistent view taken by this Court in a number of cases. It is also a well- D established principle followed throughout in various other jurisdictions as well, that wherever Parliament decides to divest the traditional Courts of their jurisdiction and transfer the lis to some other analogous Court/ Tribunal, the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred. Adjudication of disputes which was E originally vested in Judges of Courts, if done by technical or non-judicial member, is clearly a dilution and encroachment on judicial domain. With great respect, Parliament cannot divest judicial functions upon technical members, devoid of the either adjudicatory experience or legal knowledge. F

164Copy pinpoint164. It is necessary to notice few other changes brought about by the new Rules. Firstly, most Tribunals were earlier headed by judicial members. With the exception of some Tribunals like the Debt Recovery Tribunal, presiding officers were retired judges either of the Supreme Court or of High Courts. Under the present formulation of Rules, the G Central Government has widened eligibility by making persons who otherwise have no judicial or legal experience but if they are otherwise of “ability, integrity and standing, and having special knowledge of, and professional experience of” certain specialised subjects “which in the opinion of the Central Government is useful” eligible for being appointed as presiding officers. Further, others who are H

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A “qualified to be” Supreme Court and High Court judges can also head Tribunals. A perusal of Articles 124(3) and 217(2) of the Constitution shows that it specifies only the very minimum prerequisites for appointment as a judge of the Constitutional Courts. Instead, a predominant portion of the consideration for appointment to this Court or to the High Courts is uncodified and is based on a holistic consideration of the practice, legal acumen, expertise and character of Advocates. The effect of the new criteria would be to make every second advocate eligible, in effect, vastly diluting the qualifications for appointment. The characteristics necessary of such people are also vague which resultantly increases executive discretion. It thus affects both judicial independence as well as capability and competency of these Tribunals. The power/discretion vested to specify qualifications and decide who should man the Tribunals has to be exercised keeping in view the larger public interest and the same must be just, fair and reasonable and not vague or imprecise.

165Copy pinpoint165. At this juncture it must also be reiterated that equality can only be amongst equals, and that it would be impermissible to treat unequals equally on the basis of undefined contours of ‘Uniformity’. A Tribunal to have the character of a quasi-judicial body and a legitimate replacement of Courts, must essentially possess a dominant judicial character through their members/presiding officers. It was observed in Madras Bar Association (2010) (supra) that it is a fundamental prerequisite for transferring adjudicatory functions from Courts to Tribunals that the latter must possess the same capacity and independence as the former, and that members as well as the presiding officers of Tribunals must have significant judicial training and legal experience. Further, knowledge, training and experience of members/ presiding officers of a Tribunal must mirror, as far as possible, that of the Court which it seeks to substitute. Illustratively, the composition of Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, delineating this incongruity is reproduced below for reference: G Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (1) The Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of a H Supreme Court or a Judge of a High Court.

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(2) The Member of the Appellate Tribunal shall be a person A not below the rank of Joint Secretary to the Government of India.

166Copy pinpoint166. It appears to us to be incomprehensible as to how both Supreme Court and High Court judges can be eligible for the same post when their experience, exposure, knowledge and stature under the B Constitution are vastly different and the two do not form one homogenous class. There can be no forced equality between the two. Doing so would be suggestive of non-application of mind. Such an exercise would merit judicial interference.

167Copy pinpoint167. Further, dispensation of justice requires that the adjudicating institution command respect with the populace. Anomalous situations created by allowing High Court judges to be appointed to a position occupied earlier by a Supreme Court judge, affects the prestige of the Judiciary as an institution.

168Copy pinpoint168. The stature of the people manning an institution lends credibility and colour to the institution itself. There is a perceptible signalling effect in having retired Supreme Court justices as presiding officers of a particular Tribunal of National importance. The same instils an inherent fairness, dignity and exalted status in the Tribunal. Permitting such institutions to be also occupied by persons who have not manned an equivalent position or those with lesser judicial experience, does not bode well for the Tribunal besides discouraging competent people from offering their services. On the same analogy, it would be an anathema to say that High Court judges and District Court judges can both occupy the same position in a Tribunal. (C) Constitutionality of procedure of removal F

169Copy pinpoint169. It is clear from the Scheme contemplated under the Rules that the government has significantly diluted the role of the Judiciary in appointment of judicial members. Further, in many Tribunals like the NGT, the role of the Judiciary in appointment of non-judicial members has entirely been taken away. Such a practice violates the Constitutional G scheme and the dicta of this Court in various earlier decisions already referred to. It is also important to note that in many Tribunals like the National Green Tribunal where earlier removal of members or presiding officer could only be after an enquiry by Supreme Court Judges and with necessary consultation with the Chief Justice of India, under the H

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A present Rules it is permissible for the Central Government to appoint an enquiry committee for removal of any presiding officer or member on its own. The Rules are not explicit on who would be part of such a Committee and what would be the role of the Judiciary in the process. In doing so, it significantly weakens the independence of the Tribunal members. It is well understood across the world and also under our B Constitutional framework that allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the whims of the Executive, hampering discharge of judicial functions.

170Copy pinpoint170. In Madras Bar Association (2014) (supra), this Court held that: “…it was acknowledged that Parliament was not precluded from establishing a court under a new name to exercise the jurisdiction that was being exercised by members of the higher judiciary at the time when the Constitution came into force. But when that was done, it was critical to ensure that the persons appointed to be members of such a court/tribunal should be appointed in the same manner and should be entitled to the same security of tenure as the holder of the judicial office at the time when the Constitution came into force. Even in the treatise Constitutional E Law of Canada by Peter W. Hogg, it was observed: if a province invested a tribunal with a jurisdiction of a kind, which ought to properly belong to a Superior, District or Country Court, then that court/tribunal (created in its place), whatever is its official name, for constitutional purposes has to, while replacing a Superior, District or Country Court, satisfy the requirements and standards of the substituted court. This would mean that the newly constituted court/tribunal will be deemed to be invalidly constituted, till its members are appointed in the same manner, and till its members are entitled to the same conditions of service as were available to the Judges of the court sought to be substituted.”

171Copy pinpoint171. It is essential that the same be observed in letter and spirit and we therefore reiterate that Members and Presiding Officers of Tribunals cannot be removed without either the concurrence of the Judiciary or in the manner specified in the Constitution for Constitutional H Court judges.

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(D) Term of Office and Maximum Age A

172Copy pinpoint172. Various enactments providing for appointment and other incidentals of members have been brought to our notice to demonstrate an apparent disparity in age of superannuation of Members and Chairpersons/Presiding Officers of different Tribunals. Illustratively, B Section 14D of the Telecom Regulatory Authority of India Act, 1997 provides a Member of Telecom Disputes Settlement and Appellate Tribunal shall not hold office after attaining the age of sixty-five years, whereas, Section 55(1) of the Consumer Protection Act, 2019 provides that a Member of the National Consumer Disputes Redressal Commission shall not hold office after attaining the age of sixty-seven C years. This difference in superannuation age may lead to an undesirable situation wherein a member of a Tribunal with low retirement age can be reappointed in another Tribunal with a higher retirement age.

173Copy pinpoint173. The Constitution of India doesn’t differentiate between High D Courts in terms of conditions of service of judges and prescribes a uniform age of superannuation for judges of all High Courts. Conforming to the principle, as held in earlier judgements of this Court, the Tribunals should have similar standards of appointment and service as that of the Court it is substituting. There must, therefore, be a uniform age of superannuation for all members in all the Tribunals.

174Copy pinpoint174. The only differentiation in age of superannuation provided by the Constitution is that between judges of High Courts and Supreme Court. We find the reason for the same in the intention of the Constituent Assembly which aimed to incorporate the experience and knowledge of a High Court Judge when elevated as a Supreme Court judge. Hence, to utilise the experience and knowledge acquired during tenure as a judge of High Court, Supreme Court judges are provided with higher age of superannuation than the judges of High Court. Similarly, the difference between age of superannuation of Chairman/Presiding G Officer and Member of a Tribunal is because Chairman/Presiding Officer is not a promotional post and thus cannot be equated with that of the Member. The post of Chairman/Presiding Officer requires judicial and administrative experience of at least that of the judge of a High Court which is evident from the statutes prescribing them. H

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175Copy pinpoint175. Another oddity which was brought to our notice is that there has been an imposition of a short tenure of three years for the members of the Tribunals as enumerated in the Schedule of Tribunals Rules, 2017. A short tenure, coupled with provision of routine suspensions pending enquiry and lack of immunity thereof increases the influence and control of the Executive over Members of Tribunals, thus adversely affecting the impartiality of the Tribunals. Furthermore, prescribing such short tenures precludes cultivation of adjudicatory experience and is thus injurious to the efficacy of Tribunals.

176Copy pinpoint176. This Court criticised the imposition of short tenures of members of Tribunals in Union of India v. Madras Bar Association, (2010) (supra) and a longer tenure was recommended. It was observed that short tenures also discourage meritorious members of Bar to sacrifice their flourishing practice to join a Tribunal as a Member for a short tenure of merely three years. The tenure of Members of Tribunals as prescribed under the Schedule of the Rules is anti-merit and attempts to create equality between unequals. A tenure of three years may be suitable for a retired Judge of High Court or the Supreme Court or even in case of a judicial officer on deputation. However, it will be illusory to expect a practising advocate to forego his well-established practice to serve as a Member of a Tribunal for a period of three years. The E legislature intended to incorporate uniformity in the administration of Tribunal by virtue of Section 184 of Finance Act, 2017. Nevertheless, such uniformity cannot be attained at the cost of discouraging meritorious candidates from being appointed as Members of Tribunals.

177Copy pinpoint177. Additionally, the discretion accorded to the Central or State F Government to reappoint members after retirement from one Tribunal to another discourages public faith in justice dispensation system which is akin to loss of one of the key limbs of the sovereign. Additionally, the short tenure of Members also increases interference by the Executive jeopardising the independence of judiciary. G

178Copy pinpoint178. In the light of the discussion as aforesaid, we hold that the Rules would require a second look since the extremely short tenure of the Members of Tribunals is anti-merit and has the effect of discouraging meritorious candidates to accept posts of Judicial Members in Tribunals. H

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(E) Contradictions in the Rules A

179Copy pinpoint179. On the contentions of parties and in the light of the aforementioned discussion, the Bench has observed following contradictions in the Rules: (a) There is an inconsistency within the Rules with regard to the tenure prescribed for the Members of Tribunals B insofar as a fixed tenure of three years for both direct appointments from the Bar and appointment of retired judicial officers or judges of High Court or Supreme Court. It is also discriminatory to the extent that it attempts to create equality between unequal classes. The C tenure of Members, Vice-Chairman, Chairman, etc. must be increased with due consideration to the prior decisions of the Court. (b) The difference in the age of superannuation of the Members, Vice-Chairmen and Chairmen, as formulated D in the Rules is contrary to the objectives of the Finance Act, 2017 viz., to attain uniformity in the composition of the Tribunal framework. There should be a uniform age of superannuation for Members, Vice-Chairmen, Chairmen, etc. in all Tribunals. E (c) Rule 4(2) of the Rules providing that the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted shall be the convener of the Search-cum-Selection Committee, is in direct violation of the doctrine of Separation of Powers and thus contravenes the basic structure of the F Constitution. Corollary to the dictum of this Court in the Fourth Judges Case, judicial dominance in appointment of members of judiciary cannot be diluted by the Executive. (d) Rule 7 accords unwarranted discretion to the Central G Government insofar as it merely directs and not mandates the Central Government to consider the recommendation of Committee for removal of a Member of a Tribunal. The Central Government shall mandatorily consider the recommendation of the H

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A Committee before removal of any Member of Tribunal. Furthermore, the proviso to Rule 7 creates an unjust classification between National Company Law Appellate Tribunal (NCLAT) and other fora inasmuch as the removal of Chairperson or member of NCLAT alone is to be in consultation with the Chief Justice of India. B (e) Moral turpitude is a term well defined by this Court in numerous decisions. Rule 7(b) cannot be allowed to survive as it allows the Executive to interpret the meaning of ‘moral turpitude’, which is an encroachment on the judicial domain. C (f) The power of relaxation of rules with respect to any class of persons shall be vested with the Search-cum- Selection Committee and not with the Central Government as provided under Rule 20. As ruled by this Court earlier in Madras Bar Association (2014) D (supra), the Central Government cannot be allowed to have administrative control over the Judiciary without subverting the doctrine of separation of powers. ISSUE IV: WHETHER THERE SHOULD BE A SINGLE NODAL AGENCY FOR ADMINISTRATION OF ALL E TRIBUNALS?

180Copy pinpoint180. Ld. Amicus highlighted an apparent problem persisting in the current Tribunal framework in India. Tribunals established under different Central and State enactments are usually administered by their sponsoring or parent Ministry or concerned department. Thus, when F Tribunals or members thereof have to seek financial, administrative or any other facility from a department who is also the litigant before them, their fairness or independence is likely to be compromised. Such an anomalous situation can only be remedied by the establishment of a single nodal agency, overseeing the entire Tribunal system in the country, G bringing all such Tribunals to parity.

181Copy pinpoint181. This Court in L. Chandra Kumar v. Union of India (supra), envisaged the administration of the entire Tribunal Framework in the country to be monitored by a single nodal agency/ministry. It was observed not to be advisable to allow supervision of a Tribunal by a department/ministry which is a party before it. This Court recommended H

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constitution of an independent agency by the concerned Ministry, to oversee the working of Tribunals. The independent agency when constituted, may also prescribe a uniform code for appointment, qualification, condition of service, manner of allocation of fund, etc. of the Tribunals. This will, the Court suggested, minimise the influence of the parent ministry of the Tribunal, in addition to ensuring uniformity in the entire Tribunal framework. The relevant excerpt may be reproduced below: “96. …We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set up, it is desirable that all such Tribunals should be, as far as possible, under C a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.”

182Copy pinpoint182. In Union of India vs. Madras Bar Association (2010) (supra), a five-Judge Constitution Bench of this Court had the opportunity to discuss the Tribunals’ structure as prevalent in the United Kingdom. It was noted that United Kingdom has a variety of dispute redressal mechanisms which necessitated constitution of numerous committees to analyse the functioning of Tribunals. However, this Court primarily referred to the Leggatt Committee Report, constituted to undertake the review of delivery of justice through tribunals. After analysing the success story of Tribunals in U.K., this Court noticed a H

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A contrast in India and expressed its dissatisfaction with respect to the functioning of Tribunals in India, observing: “70. But in India, unfortunately tribunals have not achieved full independence. The Secretary of the “sponsoring department” concerned sits in the Selection Committee for appointment. When B the tribunals are formed, they are mostly dependent on their sponsoring department for funding, infrastructure and even space for functioning. The statutes constituting tribunals routinely provide for members of civil services from the sponsoring departments becoming members of the tribunal and continuing their lien with their parent cadre. Unless wide ranging reforms C as were implemented in United Kingdom and as were suggested by L. Chandra Kumar are brought about, tribunals in India will not be considered as independent.”

183Copy pinpoint183. This Court had earlier noted the statements of the Ld. Attorney General vide order dated 27 March 2019 in W.P. (C) No. 267/ D 2012, wherein it was submitted that the Ministry of Law is already overburdened and cannot effectively perform the supervisory function, as a single nodal Ministry, for all the Tribunals, as was earlier suggested by this Court.

184Copy pinpoint184. What appears to be of paramount importance is that every E Tribunal must enjoy adequate financial independence for the purpose of its day to day functioning including the expenditure to be incurred on (a) recruitment of staff; (b) creation of infrastructure; (c) modernisation of infrastructure; (d) computerisation; (e) perquisites and other facilities admissible to the Presiding Authority or the Members F of such Tribunal. It may not be very crucial as to which Ministry or Department performs the duties of Nodal Agency for a Tribunal, but what is of utmost importance is that the Tribunal should not be expected to look towards such Nodal Agency for its day to day requirements. There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and self-sustainable authority for all intents and purposes. The expenditure to be incurred on the functioning of each Tribunal has to be necessarily a charge on the Consolidated Fund of India. Therefore, hitherto, the Ministry of Finance shall, in consultation with the Nodal Ministry/Department, shall earmark separate and dedicated funds for the Tribunals. It will not only ensure that the Tribunals are not under the financial control of the Department,

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who is a litigant before them, but it may also enhance the public faith and trust in the mechanism of Tribunals. ISSUE V: WHETHER THERE IS A NEED FOR CONDUCTING A JUDICIAL IMPACT ASSESSMENT OF ALL TRIBUNALS IN INDIA?

185Copy pinpoint185. It was brought to our notice by the Learned Counsel for the petitioner(s) that there is an imminent need for conducting a Judicial Impact Assessment of all the Tribunals referable to the Finance Act,

2017. It was argued that neither the Legislature nor the Executive had conducted any assessment to analyse the adverse repercussions of the changes brought in the framework of Tribunals in India, if any, by the legislative exercises carried out from time to time.

186Copy pinpoint186. The contentions of the petitioner(s) cannot be said to be unfounded. The three limbs of the State viz., the Legislature, the Executive and the Judiciary are so intertwined that there is a direct impact of the action of one limb on another. Every legislation results in an immediate increase in the number of pending litigations. It is the responsibility of the other branches of the State to be conscious of the limitations of the Judiciary in keeping pace with increasing pendency of litigation. Care has to be taken to ensure that while enhancing the efficacy of legislations the accrual of resultant litigation is minimal. E

187Copy pinpoint187. The American principle of ‘Judicial Impact Assessment’ was first borrowed by this Court in its dictum in Salem Advocate Bar Assn. (II) v. Union of India45, whereby it was observed that it is imperative for the Legislature to perform a Judicial Impact Assessment of the enactment passed to assess its ramifications on the judiciary. This Court had directed for a committee to be constituted to assess the need for F Judicial Impact Assessment in the Indian context. Pursuant thereto the Jagannadha Rao Committee Report was submitted. The Report suggested that by way of Judicial Impact Assessment, the legislature must analyse the budgetary requirement of the staff that would require to be created by the statute and additional expenditure arising out of G the new cases consequent to the enactment. Further, the financial memorandum, as prepared by the legislature, must specifically include the number of civil and criminal cases expected to arise from the new enactment, requirement of more judges and staff for adjudication of 45 (2005) 6 SCC 344 H

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A these cases and the necessary infrastructure. The requisite paragraphs of the decision in Salem Advocate Bar Assn. (supra) are reproduced as follows: “49. The Committee has also suggested that: “Further, there must be ‘judicial impact assessment’, as done in the United States, whenever any legislation is introduced either in Parliament or in the State Legislatures. The financial memorandum attached to each Bill must estimate not only the budgetary requirement of other staff but also the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many courts are necessary, how many judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such judicial impact assessment has never been made by any legislature or by Parliament in our country.”

50. Having regard to the constitutional obligation to provide fair, quick and speedy justice, we direct the Central Government to examine the aforesaid suggestions and submit a report to this Court within four months.” E

188Copy pinpoint188. In the present case, we are of the view that the legislature has not conformed to the opinion of this Court with respect to ‘Judicial Impact Assessment’ and thus, has not made any attempt to assess the ramifications of the Finance Act, 2017. It can be legitimately expected that the multifarious amendments in relation to merger and reorganisation of Tribunals may result in massive increase in litigation which, in absence of adequate infrastructure, or budgetary grants, will overburden the Judiciary.

189Copy pinpoint189. In the fitness of things, we deem it appropriate to direct the Union of India to carry out financial impact assessment in respect of all the Tribunals referable to Sections 158 to 182 of the Finance Act, 2017 and undertake an exercise to assess the need based requirements and make available sufficient resources for each Tribunal established by the Parliament. ISSUE VI: WHETHER JUDGES OF TRIBUNALS SET H UP BY ACTS OF PARLIAMENT UNDER ARTICLES

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323-A AND 323-B OF THE CONSTITUTION CAN BE A EQUATED IN ‘RANK’ AND ‘STATUS’ WITH CONSTITUTIONAL FUNCTIONARIES?

190Copy pinpoint190. A concerning trend has been brought to the notice of this Court by the Learned Counsels. The Union has, in addition to equal pay and perks, accorded status equivalent to that of Supreme Court B and High Court judges to Chairmen/Presidents of various Tribunals and authorities.

191Copy pinpoint191. It is apposite to refer to the ‘Warrant of Precedence’ which delineates the sequential hierarchy of functionaries which is used most often for formal ceremonial arrangements. Such enhancement of the status of certain officials is sans any rationale and falls squarely outside the Constitutional scheme. Although seemingly pedantic, according status equivalent or higher than Constitutional functionaries by executive order or by legislation strikes at the essence of the Constitutional dignity and stature accorded to such authorities. The absurdity of the situation can be demonstrated clearly if tomorrow a bureaucrat is accorded higher status than that of a Minister, who is the head of his department. Such designations do not have a personal value but rather represent the framework and structure of governance envisaged. Illogical changes or altercations hence disturbs the fabric of hierarchy and discipline necessary for the effective functioning of the State. E

192Copy pinpoint192. A similar situation arose in T.N. Seshan vs. Union of 46 India wherein the Government of India had by ordinance accorded pay and perks equivalent to that of Supreme Court judges to the Chief Election Commissioner. Consequently, a demand was made for according rank in the Warrant of Precedence equivalent to that of F Supreme Court judges. A five-judge bench of this Court held that mere equality in conditions of service to that of a Supreme Court judge cannot confer equal status to such other functionaries. It was noted that: “34. One of the matters to which we must advert is the question of the status of an individual whose conditions of service are akin G to those of the Judges of the Supreme Court. This seems necessary in view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of the service conditions of the CEC are akin to those of the Supreme 46 (1995) 4 SCC 611. H

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A Court Judges, namely, (i) the provision that he can be removed from office in like manner and on like grounds as a Judge of the Supreme Court and (ii) his conditions of service shall not be varied to his disadvantage after appointment. So far as the first is concerned instead of repeating the provisions of Article 124(4), the draftsman has incorporated the same by reference. The B second provision is similar to the proviso to Article 125(2). But does that confer the status of a Supreme Court Judge on the CEC? It appears from the D.O. No. 193/34/92 dated 23-7-1992 addressed to the then Home Secretary, Shri Godbole, the CEC had suggested that the position of the CEC in the Warrant of C Precedence needed reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December 1991. It becomes clear from Shri Godbole’s reply dated 25-7-1992, that the CEC desired that he be placed at No. 9 in the Warrant of Precedence at which position the Judges of the Supreme Court figured. It appears from Shri Godbole’s reply that the proposal was considered but it was decided to maintain the CEC’s position at No. 11 along with the Comptroller and Auditor General of India and the Attorney General of India. However, during the course of the hearing of these petitions it was stated that the CEC and the Comptroller and Auditor General of India were thereafter placed at No. 9-A. At our request the learned Attorney General placed before us the revised Warrant of Precedence which did reveal that the CEC had climbed to position No. 9-A along with the Comptroller and Auditor General of India. Maintenance of the status of Judges of the Supreme Court and the High Courts is highly desirable in the national interest. We mention this because of late we find that even personnel belonging to other fora claim equation with High Court and Supreme Court Judges merely because certain jurisdictions earlier exercised by those Courts are transferred to them not realising the distinction between constitutional and statutory functionaries. We would like to impress on the Government that it should not confer equivalence or interfere with the Warrant of Precedence, if it is likely to affect the position of High Court and Supreme Court Judges, however pressing the demand may be, without first seeking the views of the Chief Justice of India. We may add that Mr G. Ramaswamy, learned counsel for the CEC, frankly H

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conceded that the CEC could not legitimately claim to be equated with Supreme Court Judges. We do hope that the Government will take note of this and do the needful.”

193Copy pinpoint193. In light of the unequivocal assertions of a co-ordinate bench of this Court, there can be no doubt that executive action cannot confer status equivalent to that of either Supreme Court or High Court judges on any member or head of any Tribunal or other judicial fora.

194Copy pinpoint194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323-B of the Constitution cannot seek equivalence with High Courts or the Supreme Court. Once a judge of a High Court C or Supreme Court has retired and he/she no longer enjoys the Constitutional status, the statutory position occupied by him/her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme47.

195Copy pinpoint195. This Court in L. Chandra Kumar (supra) observed that Tribunals are not substitutes of Superior Courts and are only supplemental to them. Hence, the status of members of such Tribunals cannot be equated with that of the sitting judges of Constitutional Courts else, as V.R. Krishna Iyer, J. aptly pointed in his article titled ‘Why Stultify Judges’ Status?’, “Creating deemed Justices of High Courts with equal status and salaries suggests an oblique bypassing of the F Constitution….”. The relevant extract of L. Chandra Kumar (supra) is reproduced as follows: “93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional power of these Tribunals. The Tribunals are competent to hear matters where the vires of G statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been 47 Justice VR Krishna Iyer, “Why Stultify Judges’ Status?”, (2002) 2 LW (JS) 85 (June, 2000) H

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A specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts….”

196Copy pinpoint196. We would further point out that the Warrant of Precedence B is a mere self-serving executive decision and not a law in itself. It is a reflection of the inter-se hierarchy amongst functionaries for the purposes of discharge of important ceremonial functions and other State duties. It cannot either confer rights or alter the status accorded by law. It would further be clearly abhorrent to use such an instrument to undermine the order of precedence clearly accorded under the C Constitution.

197Copy pinpoint197. It is hence essential that the Union of India, takes note of the observations of this Court herein and abide by the spirit of the Constitution in respecting the aforementioned difference between constitutional functionaries and statutory authorities. It is important for D the Union of India to ensure that judges of High Courts and the Supreme Court are kept on a separate pedestal distanced from any other Tribunal or quasi-judicial Authority. ISSUE VII: WHETHER DIRECT STATUTORY APPEALS FROM TRIBUNALS TO THE SUPREME COURT E OUGHT TO BE DETOURED?

198Copy pinpoint198. During the course of arguments, various facets were highlighted before this Court, including the soaring pendency of cases and non-adherence of directions of this Court in earlier judgments requiring reconsideration by the legislature of the increasing trend of providing direct statutory appeals to this Court against orders of Tribunals.

199Copy pinpoint199. As discussed earlier, Tribunalisation has increased at a rapid pace in the past few decades in our country. Since establishment of the ITAT during the pre-independence era, the number of tribunals has now increased to several dozens. The Constitution of India (42 nd Amendment) Act, 1976 provided for setting up of Administrative Tribunals through Article 323A as well as other Tribunals under Article 323B. These aforementioned provisions in the Constitution were construed by the legislature in a manner resulting in the ousting of jurisdiction of all Courts except the Supreme Court under Article 136.

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Later, in L. Chandrakumar (supra), this court very aptly held that judicial review by High Courts under Article 226 is a part of the basic structure and hence could not be ousted by any legislation or even Constitutional amendment. Moreover, this Court in L. Chandrakumar (supra) and later in Madras Bar Association (2014) (supra) and Gujarat Urja Vikas Ltd. (supra) reiterated the urgent need to do away with increasingly common provisions in statutes providing direct statutory appeal to this Court, which as discussed elaborately below poses significant problems in the administration of justice and is also against the Constitutional scheme.

200Copy pinpoint200. Since the aforesaid issue has not been directly raised by the petitioners and only a passing reference has been made, it is necessary to delineate whether providing such appeals to this Court is in consonance with the three-tier Judicial system as established under our Constitution.

201Copy pinpoint201. An examination of the jurisdiction of the Supreme Court as envisaged under the Constitution must be made. Such jurisdiction bestowed upon this Court by the Constitution can be broken into three limbs: appellate, original and advisory. A brief description of these jurisdictions is provided below: Original jurisdiction: E (i) Writ jurisdiction under Article 32. (ii) Disputes of election to President/Vice-President under Article 71. (iii) Inter-state or State-Centre disputes under Article 131. F (iv) Transfer cases under Articles 139 and 139A. (v) Contempt of Court under Article 145. Appellate jurisdiction: (i) Appeals against orders of High Courts with certificate of there being substantial constitutional questions under G Article 132. (ii) Appeals against orders of High Courts in civil cases with certificate that there is substantial question of general importance or that the matter needs to be decided by the HC under Article 133. H

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A (iii) Appeals against orders of High Courts in criminal cases against award of death penalty in the first instance by the HC, either on appeal or in original trial under Article 134. (iv) All other cases appealable to the Federal Court before B commencement of the Constitution under Article 135. (v) Discretionary power to grant special leave to appeal any order by any court or tribunal under Article 136. Advisory jurisdiction: C (i) Presidential reference under Article 143. (ii) Reference on removal of Public Service Commission member under Article 317.

202Copy pinpoint202. The ambit of appellate jurisdiction is clear from a perusal of Articles 132 to 136 of the Constitution. Article 132 provides that an appeal may be instituted before the Supreme Court against any order of the High Court where a substantial question of law arises for consideration. Article 133(3) specifies that there shall be no appeal from the order of a single judge of the High Court unless the contrary is provided through a law by the Parliament. Further, Article 134 delineates the jurisdiction of the Supreme Court in criminal matters restricting it primarily to cases where the High Court has awarded death sentence either in trial before it or in reversal of an earlier acquittal by the trial court. In addition to this, Article 134(2) is lucid in its wording to provide that in absence of any specific legislation by the Parliament to enlarge the criminal appellate jurisdiction of this Court, no routine appeal lies before the Supreme Court in criminal matters. The extract from Article 134(2) has been reproduced below: “(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.”

203Copy pinpoint203. Article 134(2) is successful in clarifying two things. Firstly, there is no provision analogous to Article 134(2) under Article 133 to expand the jurisdiction of the Supreme Court in non-criminal matters.

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Secondly, Article 134(2) does not encompass matters other than those A arising out of criminal proceedings from the High Courts.

204Copy pinpoint204. Presently, there are more than two dozen statutes which provide direct appeals to the Supreme Court from various Tribunals and High Courts. A non-exhaustive list of such Statutes includes: (i) Section 35L of the Central Excise Act, 1944 (1 of 1944); B

(ii) Section 116A of the Representation of the People Act, 1951 (43 of 1951); (iii) Section 38 of the Advocates Act, 1961 (25 of 1961); (iv) Section 261 of the Income Tax Act, 1961 (43 of 1961) C before the establishment of National Tax Tribunal; (v) Section 130E of the Customs Act, 1962 (52 of 1962); (vi) Section 19(1)(b) of the Contempt of Courts Act, 1971 (70 of 1971); D (vii) Section 374 and 379 of the Code of Criminal Procedure, 1973 (2 of 1974) read with Section 2 of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (28 of 1970); (viii) Section 23 of the Consumer Protection Act, 1986 (68 E of 1986); (ix) Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); (x) Section 10 of the Special Courts (Trial of Offences relating to Transactions in Securities) Act, 1992 (27 of F 1992); (xi) Section 15Z of the Securities and Exchange Board of India Act, 1992 (15 of 1992); (xii) Section 18 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997); G

(xiii) Section 53T of the Competition Act, 2002 (12 of 2003); (xiv) Section 125 of the Electricity Act, 2003 (36 of 2003); (xv) Section 24 of the National Tax Tribunal Act, 2005 (49 of 2005); H

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A (xvi) Section 30 of the Armed Forces Tribunal Act, 2007 (55 of 2007); (xvii) Section 37 of the Petroleum and Natural Gas Regulatory Board Act, 2006 (19 of 2006); (xviii) Section 31 of the Airports Economic Regulatory B Authority of India Act, 2008 (27 of 2008); (xix) Section 22 of the National Green Tribunal Act, 2010 (19 of 2010); (xx) Section 423 of the Companies Act, 2013 (18 of 2013); C (xxi) Section 38 of the Pension Fund Regulatory and Development Authority Act, 2013 (23 of 2013); (xxii) Section 21 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (22 of 2015); D (xxiii) Section 62 and 182 of Insolvency and Bankruptcy Code, 2016 (31 of 2016); and (xxiv) Section 118 of the Central Goods and Services Tax Act, 2017 (12 of 2017).

205Copy pinpoint205. Such statutory appeals take away the inherent ability of the Supreme Court, as envisaged in the Constitution, to regulate cases before it by confining its consideration to cases involving the most egregious of wrongs and/or having the greatest impact on public interest.

206Copy pinpoint206. Further, in providing for appeals directly from Tribunals, the jurisdiction of High Courts is in effect curtailed to a great extent. Not only does this hamper access to justice, but it also takes away the much needed exposure for High Court judges, earnestly needed in a vibrant and ever-evolving judiciary. Since majority of the judges of the Supreme Court are elevated from the High Courts, their lack of exposure to these specialised areas of law hinders their efficacy in adjudicating the direct statutory appeals from specialised Tribunals.

207Copy pinpoint207. A perusal of the Indian Judiciary: Annual Report 2017- 18, published by this Court shows that pendency in the Supreme Court stands at more than 56,000 cases. Each year this Court hears a humungous volume of cases and disposes of approximately 60,000 - H 90,000 cases annually, thus amounting to a staggering 4,000 - 6,000

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cases per bench. Out of all the cases instituted before this Court, less than 2% is for exercise of writ jurisdiction under Article 32 whereas an overwhelming majority of cases are petitions for special leave to appeal under Article 136.

208Copy pinpoint208. Although the rate of admission of cases peaked at about 20% in 2011 and has fallen since then, it is still far above the marginal rate of about 1% in other comparable jurisdictions such as the Supreme Court of the United States. The mere task of hearing all cases and considering whether to grant leave or not usurps a majority of the Court’s time. As a result of frequent invocation of Article 136 by litigants, the Court is left with hardly any time to discharge its key Constitutional functions of deciding substantial Constitutional questions, as envisaged by our founding fathers. As compared to the early 1960s where Constitution Benches decided hundreds of cases, the number is no more than a dozen now. Most seminal cases involving major issues of jurisprudence or effecting revolutionary changes on the legal landscape are by compulsion heard by Division Benches, thus defeating the very objective of Article 145(3).

209Copy pinpoint209. The decrease in propensity of a person with humble means or situated farther away from the Delhi to approach the Supreme Court is evidence of the fact that the remedy to approach this Court has been, in effect, limited to only those with access to ample financial resources. E Numerous studies have shown how every tenth case decided by the High Court of Delhi or every sixteenth case decided by the High Court of Punjab & Haryana is appealed before this Court, as compared to a minuscule rate of appeal of a little over 1% against the decision of High Court of Madras. Being an authority entrusted to resolve Constitutional conflicts or to safeguard the fundamental rights of citizens, this Court F cannot afford to provide access only to the affluent. Although it would be futile to examine the effects of such rampant regular appeals, however, it is apparent that it substantially affects the time and quality of judicial determination by this Court. This view had also been noted in the 272nd Report of the Law Commission wherein it was pointed out G that: “3.12. The objective behind establishing the ‘Tribunals’ was to provide an effective and speedier forum for dispensation of justice, but in the wake of routine appeals arising from the orders of such forums, certain issues have been raised because such H

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