MADRAS BAR ASSOCIATION v. UNION OF INDIA AND ANR.

A of the English Language 565 (def. 12) (1966) (defining “free” as “exempt or released from something specified that controls, restrains, burdens, etc.”). Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home. And as for “discrimination,” we assume that it carries its “‘normal definition,’” which is “‘differential treatment.’” Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005). Under §633a(a), the type of discrimination forbidden is “discrimination based on age,” and “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63 (2007); cf. Comcast Corp. v. National Assn. of African American Owned Media, ante, at 6. Therefore, §633a(a) requires that age be a but-for cause of the discrimination alleged. What remains is the phrase “shall be made.” “[S]hall be made” is D a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language, at 866. Thus, “shall be made” means “shall be produced,” etc. And the imperative mood, denoting a duty, see Black’s E Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint. So much for the individual terms used in §633a(a). What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, “based on age” is an adjectival phrase that modifies the noun “discrimination.” It F does not modify “personnel actions.” The statute does not say that “it is unlawful to take personnel actions that are based on age”; it says that “personnel actions . . . shall be made free from any discrimination based on age.” §633a(a). As a result, age must be a but-for cause of discrimination— G that is, of differential treatment—but not necessarily a but- for cause of a personnel action itself. Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made.” Ibid. Thus, “free from any discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. If H

p. 881 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

age discrimination plays any part in the way a decision is A made, then the decision is not made in a way that is untainted by such discrimination. This is the straightforward meaning of the terms of §633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account.” B (emphasis supplied)

30. The Delhi High Court, in its decision reported as Commissioner, M.C.D. v. Shashi39 invalidated a rule that allowed the public employer to screen candidates based on their age, emphasizing that: ‘‘Subject to constitutionally permissible reservations, every endeavour must be made by the State to employ or engage the most qualified or the most meritorious persons. In doing so, the State may fix shortlisting criteria on the basis of educational qualifications or experience or marks obtained in an examination or an interview or any other criterion which enables the most competent person to be selected. Unfortunately, age has nothing to do either with merit or competence. Wisdom may be an attribute of age, but not merit or competence.

13. There is not even an iota of material to suggest, nor indeed has anything been pointed out by learned Counsel for the Petitioner, that merely because an applicant falls within the age group of 28 to 30 years he is better qualified as a teacher than a person falling in the age group of 18 to 27 years. It is not the case of the Petitioner that persons in the age group of 28 to 30 years are either better qualified educationally or have more experience or are in any manner more meritorious or competent than the applicants falling within the age group of 18 to 27 years solely because of their age. It seems to us that the Petitioner has literally picked the age group of 28 to 30 years out of the hat (as it were) without any reference to any logical or empirical basis”

31. In the present case, therefore, the qualification of a minimum age of 50 years as essential for appointment, is discriminatory because it is neither shown to have a rational nexus with the object sought to be 39 (2009) 165 DLT 17 H

p. 882 Copy page pinpoint

A achieved, i.e. appointing the most meritorious candidates; nor is it shown to be based on any empirical study or data that such older candidates fare better, or that younger candidates with more relevant experience would not be as good, as members of tribunals. It is plain and simple, discrimination based on age. The criterion (of minimum 50 years of age) is virtually “picked out from a hat”40 and wholly arbitrary. B

32. As stated earlier, the tribunals which were reorganized by the Finance Act, 2017 and now, through the impugned ordinance, exercise judicial functions of the State, interpret and enforce the law, in the course of adjudication of disputes. As repeatedly emphasized by this court in previous Constitution Bench judgments, appointment of members (of such tribunals), their conditions of service, manner of selection, remuneration and security of tenure are vital to their efficiency and independent functioning. It is in this backdrop that the Union’s contention regarding “equivalence” or “parity” with members of the civil services of the Union or holders of civil posts under the Union, as a justification for the age criterion, needs to be examined.

33. This Court in All India Judges’ Assn. (II) v. Union of India41, held that: “9. So much for the contention of the review petitioners that the directions given by this Court would lead to the demand from the members of the other services for similar service conditions. It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the Judges and those of the members of the other services. It is true that under Article F 309 of the Constitution, the recruitment and conditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and the conditions of service. G It is also true that after the Council of States makes the necessary declaration under Article 312, it is the Parliament which is empowered to create an All India Judicial Service 40 An expression used in an analogous context, while declaring a cut-off date to be arbitrary, in D.R. Nim v Union of India 1967 (2) SCR 325. 41 H (1993) 4 SCC 288.

p. 883 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

which will include posts not inferior to the post of District A Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the service conditions of the members of all the services should be the same. As it is, even among the other services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage between the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the judicial as well as the administrative service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction between the two services right from the stage of the recruitment, its logical consequences in terms of the service conditions could not be avoided. With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on a par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter.” H

p. 884 Copy page pinpoint

A 34. In addition, it is worthwhile to recollect that a civil servant’s experience, though varied and diverse – ranging from co-ordination and administration at taluk, district and state levels, to devising, framing and implementing the government’s policies and programmes, to managing statutory corporations and even commercial enterprises of the state, does not always entail adjudicatory functions. However, legal B practitioners, chartered accountants and one segment of civil servants, i.e. tax administrators and adjudicators are involved in the day to day interpretation of law, leading to adjudicatory outcomes. Such being the case, the equivalence of “status” of members of tribunals cannot be compared in a linear or rigid manner. That according to the Union’s C scheme of rules and regulations, members of its services can attain a certain rank upon attaining the age of, say, 50 years, therefore, cannot be determinative. In any case, the argument of equivalence is not relevant. This point too, was brought home in the judgment of this court, in All India Judges Association II (supra): D “Unlike the administrative officer, the judicial officer is obliged to work for long hours at home. When he reserves a judgment he has usually to prepare the same at his residence. For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries. Even otherwise with a view to keeping himself up to date about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court. He has also to read legal journals.”

35. There are other points of distinction too between civil servants and members of tribunals. Members of tribunals are not drawn from any civil service; they are not holders of civil posts. Civil servants, especially members of the All-India Services recruited by the Union, some of whom are deployed to different States, are governed by rules and other service conditions embodied in circulars and orders. These govern their entire universe of employment: starting with eligibility conditions, rules for recruitment and selection, pay and allowances, seniority, promotion, discipline and other matters related to misconduct, pension, terminal benefits etc. On the other hand, such rules or similar rules do not apply to members of tribunals not drawn from public service. It is only conditions of equivalence such as pay scale which they are assured of under the rules, which also determine their status. The manner H

p. 885 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

of selection, conditions of eligibility, rules for their removal upon proven A misbehaviour and so on, are entirely different from public servants. In fact, the latter category, i.e. members of tribunals not drawn from public service sources, are not even holders of civil posts or members of any encadred civil service. This has been clarified in at least two judgments of this court.42 They are not governed by Article 311 of the B Constitution, nor are their conditions of service laid out in rules framed under the proviso to Article 309 of the Constitution. Such being the position, the argument of parity, in the opinion of the Court, is entirely devoid of merit. Nor is the argument of the Attorney General that a uniform age is necessary, merited. There is no material to show that members recruited on the technical side, such as experts in engineering, scientific or other technical fields would be suitable only after they cross the age of 50. In fact, one can complete a doctoral thesis and become a holder of a Ph.D at the time that she or he is 30 years or even below. To be a professor, one has to possess 10 years teaching experience; there is no minimum age under the relevant regulations framed by the UGC. Even non-teaching personnel, on the basis of their research, can be designated professors43. 42 State of Maharastra v Labour Law Practitioners Association 1998 (2) SCC 688 “Going by these tests laid down as to what constitutes judicial service under Article 236 of the Constitution, the Labour Court judges and the judges of the Industrial Court can be held to belong to judicial service.” In S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252 the previous decision in Harinagar Sugar Mills v Shyam Sunder Jhunjunuwala 1962 (3) SCR 339 was quoted: “Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different.” In Union of India v K.B. Khare 1994 (3) SCC 502, this court repelled the contention that members of the Central Administrative Tribunals were government officials, subject to its rules: “On the contrary, an independent judicial service, the appointment in the CAT is on tenure basis. The pension relating to such post is clearly governed by Rule 8 of the Rules quoted above and at the risk of repetition, we may state it exhaustive in nature.” 43 UGC Regulations on Minimum qualifications for appointment of Teachers and other academic staff in Universities and Colleges and measures for the Maintenance of Standards in Higher Education,20104.0.0 DIRECT RECRUITMENT G “4.1.0 PROFESSOR A. (i) An eminent scholar with Ph.D. qualification(s) in the concerned/allied/relevant discipline and published work of high quality, actively engaged in research with evidence of published work with a minimum of 10 publications as books and/or research/policy papers. (ii) A minimum of ten years of teaching experience in university/college, and/or experience in research at the University/National level institutions/industries, including experience of guiding candidates for research at doctoral H

p. 886 Copy page pinpoint

p. 887 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

36. A further, but crucial issue. In Madras Bar Association v A Union of India45 (MBA-III) this court held as unlawful the exclusion of advocates from consideration in the following directions: “53. The upshot of the above discussion leads this court to issue the following directions: ********** B

(vi) The 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals. (vii) The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law.” E

37. The Union of India had not made any move to give effect to the above directions. The declaration of law in MBA-III recorded in an earlier part of the decision, that advocates in all tribunals are eligible for consideration for appointment as members of various tribunals. It is no longer open to exclude such eligible advocates from consideration. The F direction to the following effect is binding and has become final. It has not been interdicted in any manner, by the impugned ordinance: “Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members, is therefore, contrary to Union of India v. Madras Bar Association (2010) 19 and G Madras Bar Association v. Union of India (2015)20. However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of 45 2020 SCCOnline (SC) 962 H

p. 888 Copy page pinpoint

A law while considering them for appointment as judicial members”. After hearings were concluded, the directions in MBA-III on the above score, were accepted, and Advocates have now been made eligible, for appointment to 15 tribunals, after they complete 10 years’ B enrolment, and have relevant experience or in the concerned field of practice.

38. As a result of the above discussion, the proviso to Section 184 (1), inserted by the impugned ordinance is declared void. A declaration is issued that all candidates, otherwise eligible on their merit, based on qualifications and experience in the relevant field, are entitled to be considered, without reference to the impugned “minimum” age (of 50 years) criteria.

39. I am in agreement with the reasoning and conclusions of L. Nageswara Rao, J. about the impermissibility of legislative override, even while upholding the retrospectivity accorded to Section 184 (11). In addition to the detailed reasons why such a legislative override is impermissible in the circumstances of this case, I would also rely on the Constitution Bench judgment in State of Gujarat v. Raman Lal Keshav Lal Soni46. This Court, in Raman Lal dealt with the issue of retrospective application of a provision of the Gujarat Panchayats Act, 1961. The E facts pertained to denial of the benefits of two pay commissions to employees of Panchayat Institutions who had previously been employed by municipalities. The legislative provision (Section 102(1)) was given retrospective effect, classifying these employees as servants of Gram/ Nagar Panchayats, notwithstanding judgments of courts which had F declared them to be Government servants, which would have entitled them to the revised pay scale. The court held: “53. (…) The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do’s G and don’ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or 46 H (1983) 2 SCC 33.

p. 889 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today’s rights and not yesterday’s. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history. It was pointed out by a Constitution Bench of this Court in B.S. Yadav and Ors. etc. v. State of Haryana and Ors. etc. [1981] 1 SCR 1024, Chandrachud CJ., speaking for the Court, C “Since the Governor exercises the legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate, must be shown to bear either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case”. Today’s equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tempered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujarat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Articles 311 and 14 and is arbitrary and unreasonable.”

40. The impugned provision in the present case reads as follows: “(11) Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, –– H

p. 890 Copy page pinpoint

A (i) the Chairperson of a Tribunal shall hold office for a term of four years or till he attains the age of seventy years, whichever is earlier; (ii) the Member of a Tribunal shall hold office for a term of four years or till he attains the age of sixty-seven years, whichever is earlier: Provided that where a Chairperson or Member is appointed between the 26th day of May, 2017 and the notified date and the term of his office or the age of retirement specified in the order of appointment issued by the Central Government is greater than that which is specified in this section, then, notwithstanding anything contained in this section, the term of office or age of retirement or both, as the case may be, of the Chairperson or Member shall be as specified in his order of appointment subject to a maximum term of office of five years.”

41. The interim directions of this court, which culminated and were subsumed in Roger Mathew (supra), resulted in the appointment of members of various tribunals, whose term is now sought to be interdicted by the proviso to Section 184 (11), which has been introduced with retrospective effect. I agree with Rao, J. that while the retrospectivity accorded to this provision cannot be faulted, nevertheless, the said proviso, to the extent it seeks to interfere with and curtail the tenure of members appointed under interim orders, who are entitled to enjoy their term of office, in accordance with the pre-amended legislation and rules, is arbitrary and void. As held in Raman Lal (supra), “(t)oday’s equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective”. In a manner somewhat reminiscent of the facts of this case, an interim order, enjoining the employer, All India Institute of Medical Sciences (AIIMS) from curtailing the tenure of the then Director, was sought to be legislatively overridden by Parliament. In P. Venugopal v. Union of India47, this court held that enactment to be unlawful, and held that the curtailment of tenure for one person was arbitrary and based on no reasonable criteria:

47 H (2008) 5 SCC 1

p. 891 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

“36. From the aforesaid discussion, the principle of law stipulated by this Court is that curtailment of the term of five years can only be made for justifiable reasons and compliance with principles of natural justice for premature termination of the term of a Director of AIIMS squarely applied also to the case of the writ petitioner as well and will also apply to any future Director of AIIMS. Thus there was never any permissibility for any artificial and impermissible classification between the writ petitioner on the one hand and any future Director of AIIMS on the other when it relates to the premature termination of the term of office of the Director. Such an impermissible overclassification through a one-man legislation clearly falls foul of Article 14 of the Constitution being an apparent case of “naked discrimination” in our democratic civilised society governed by the rule of law and renders the impugned proviso as void ab initio and unconstitutional.

37. Such being our discussion and conclusion, on the constitutionality of the proviso to Section 11(1-A), we must, therefore, come to this conclusion without any hesitation in mind, that the instant case is squarely covered by the principles of law laid down by this Court in the various pronouncements as noted hereinabove including in D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor E [D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] . ************

39. It was further held in D.S. Reddi [D.S. Reddi, Vice- F Chancellor, Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] that such a classification was not founded on an intelligible differentia and was held to be violative of Article 14 of the Constitution of India. Accordingly, the provision of Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14 of the Constitution. G Similarly in the present case, the impugned proviso to Section 11(1-A) itself states that it is carrying out premature termination of the tenure of the writ petitioner. It is also admitted that such a premature termination is without following the safeguards of justifiable reasons and notice. It is thus a H

p. 892 Copy page pinpoint

A case similar to D.S. Reddi [D.S. Reddi, Vice-Chancellor, Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of B natural justice without there being any intelligible differentia.

42. In my opinion, like in P. Venugopal (supra) the curtailment of tenure to five years, of these few individuals appointed as members of tribunals, who were entitled to continue in office in terms of the pre- existing enactments (upto the age of 62 years etc.) is arbitrary. Apart C from the fact that the Union wishes to curtail their tenure despite the finality of directions of this court in Roger Mathew and MBA-III, there is no conceivable rationale. Nor has any overriding public interest been espoused as a justification for this. The divesting of judicial office by legislative fiat, in this court’s opinion, directly affects the independence of the judiciary. It also amounts to naked discrimination, because all other members of the same tribunals would enjoy longer tenure, in terms of the pre-existing conditions of service, which prevailed at the time of their appointment.

p. 893 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

against a sanctioned strength of 34, only 11 members are currently in A office – 4 judicial members and 6 administrative members, for the tribunal’s 11 benches. Till 28.02.2021, a total of 18,829 cases were pending for disposal; the highest pendency was before the principal bench in Delhi, with 5553 cases, followed by Chandigarh with 4512 cases and Jaipur with 3154 cases.50 At the 18 benches of the Central Administrative B Tribunal (CAT), only 36 members are in office, against a sanctioned strength of 65.51 Over 48,000 cases are pending disposal at the CAT, with over 28,000 cases pending for 1-5 years.52 As on 01.03.2021, 72,452 cases were pending before various benches of the CESTAT. Out of a total strength of 26, 18 positions are filled, and 8 vacancies are still open in the 9 benches of the CESTAT.53At the Income Tax Appellate Tribunal C (ITAT), only 66 members are in office, out of a sanctioned strength of 12654, and a total of about 88,000 appeals are pending. 24,000 are pending before the Delhi bench, followed by about 16,000 before the Mumbai bench.55 At the National Consumer Disputes Redressal Commission (NCDRC), 138105 cases have been filed since inception (i.e. since 1987) D out of which 1,16,572 have been disposed of. 21,443 cases are pending. At state commissions, 124559 cases are still pending, and 401184 are pending before district forums. The total pendency is 547186 cases. 56 Out of the 44 benches of the Debt Recovery Tribunal (DRT) and sole Debt Recovery Appellate Tribunal (DRAT), 11 benches have vacancies.57 E 50 Available at https://www.tribuneindia.com/news/nation/23-out-of-34-posts-of-armed- forces-tribunal-vacant-19-000-cases-pending-mod-tells-parliament-223283 (last accessed on 20.06.2021). 51 Available at http://www.cgatnew.gov.in/writereaddata/Delhi/docs/RTI/list.pdf (last accessed on 20.06.2021). 52 F Available at https://theprint.in/india/governance/purpose-of-central-administrative- tribunal-far-from-being-achieved-parliamentary-panel/378156/ (last accessed on 20.06.2021). 53 Available at https://cestatnew.gov.in/uploads/writereaddata/Delhi/docs/ pendency022021.pdf (last accessed on 20.06.2021). 54 See https://itat.gov.in/page/content/members (last accessed on 21.06.2021). 55 Available at https://www.business-standard.com/article/pti-stories/88-000-appeals- G pending-before-income-tax-appellate-tribunal-chairman-120022601297_1.html (last accessed on 21.06.2021). 56 http://ncdrc.nic.in/stats.html (last accessed on 21.06.2021). 57 https://www.business-standard.com/article/economy-policy/banks-flag-tardy- decision-making-piling-of-cases-at-recovery-tribunals-119032300883_1.html (last accessed on 21.06.2021). H

p. 894 Copy page pinpoint

A As of April 2020, the Railway Claims Tribunal had 25,571 pending cases. 58

44. The sheer volume of pendency is an indicator of the substantial judicial functions carried out by tribunals, necessitating that they be manned by efficient, well qualified judicial and technical members. It is necessary that the Union expedite the process of appointments to tribunals, towards ensuring swifter, and efficacious justice delivery.

45. As a postscript, one would only say that this judgment- seventh in the series commencing with R.Gandhi, hopefully should conclude all controversies. It would be erroneous on anyone’s part to consider that interdiction by this court amounts to conflict with Parliamentary or executive wisdom. Each judgment- when it interprets provisions relating to setting up of tribunals and other arrangements for tribunals, adds to the ongoing discourse between the three branches of governance. The Constitution of India envisions a republic, governed by the rule of law, and guarantees justice: social, economic and political, as well as equality of status and of opportunity. Acting within their assigned spheres, the legislative, executive and judicial departments strive to further this constitutional vision. When assured rights or the principle of equality cannot be secured by the citizen or person guaranteed it, she turns to the judicial wing. It is to ensure that this wing has the competence, vitality and fairness, expected of it, that this court intervenes, to ensure that the adjudicatory mechanisms are robust, independent, and are manned by competent and merited personnel.

46. In view of the foregoing discussion, I conclude and hold as follows: F (i) The first proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is hereby declared void and inoperative. Similarly, the second proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms G (Rationalisation and Conditions of Service) Ordinance, 2021 is held to be void and inoperative.

58 See https://indianexpress.com/article/india/rct-judges-drag-govt-to-sc-cite- fundamental-rights-to-seek-extension-6380655/ (last accessed on 21.06.2021). H

p. 895 Copy page pinpoint

[S. RAVINDRA BHAT, J.]

(ii) Section 184(7) of the Finance Act, 2017 introduced by Section A 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is hereby declared void and inoperative. (iii) Section 184(11)(i) and (ii) introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service) Ordinance, 2021 are hereby declared as void and unconstitutional. B (iv) Consequently, the declaration of this Court in para 53(iv) of MBA-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier. C (v) The retrospectivity given to the proviso to Section 184(11) – introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service) Ordinance, 2021 is hereby upheld; however, without in any manner affecting the appointments made to the post of Chairperson or members of various Tribunals, upto 04.04.2021. In other words, the D retrospectivity of the provision shall not in any manner affect the tenures of the incumbents appointed as a consequence of this Court’s various orders during the interregnum period. (vi) The writ petition is allowed to the above extent. E

HEMANT GUPTA, J.

1. I have gone through the detailed judgment authored by Justice L. Nageswara Rao as also separate but concurring judgment of Justice F Ravindra Bhat, but I am unable to persuade myself to agree with the views expressed therein except to the limited extent that part of Section 187(7) of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 20211 that the Search and Selection Committee shall recommend two names for a post and that the tenure of members including Chairperson etc. shall be four years in terms of Clauses (i) and (ii) of G Section 184 (11) of the Ordinance is illegal since the issues of constitution of panel and tenure have already been decided in MBA-III and that without removing such defect, the Ordinance could not be enacted.

1 For short, the ‘Ordinance’ H

p. 896 Copy page pinpoint

A 2. Before I advert to the grounds of challenge, some of well- established and settled principles of the applicability of the principles of interpretation need to be recapitulated. (i) The power of Legislature is to enact law and the power of Judiciary of that of judicial review of the statutory enactments.

3. The three organs of the State i.e., Legislature, Judiciary and Executive have separate and distinct roles and functions as provided in the Constitution. All the institutions must act within their own jurisdiction and not trespass into the jurisdiction of others. By segregating the powers and functions of the three institutions, the Constitution ensures such a structure where the institutions function as per their own institutional strength. Secondly, it also creates a system of checks and balances as the Constitution provides a degree of latitude for interference by each branch into the functions and tasks performed by another branch2.

D 4. The Constitution does not permit the courts to direct, advise or sermonize other organs of the State in the spheres reserved for them, provided the legislature or executive does not transgress its constitutional limits or statutory conditions. Independence and adherence to constitutional accountability and limits while exercising the power of judicial review gives constitutional legitimacy to the court decisions. This E is the essence of the power and function of judicial review that strengthens and promotes the rule of law3.

5. It is also to be noted that the application of law by the Judges is not synonymous with the enactment of law by the legislature. Judges have the power to spell out how precisely the statute would apply in a F particular case. In this manner, they complete the law formulated by the legislature by applying it. This power of interpretation or the power of judicial review is exercised post the enactment of law, which is then made subject-matter of interpretation or challenge before the courts. 4

6. This Court has observed that if a law is enacted by the Parliament G or Legislature, even if it is assumably contrary to the directions or guidelines issued by the Court, it cannot be struck down by reason of such directions/guidelines issued by the Court; it can be struck down 2 Dr. Ashwani Kumar v. Union of India & Anr., (2020) 13 SCC 585 (Para 10) 3 Ibid (Para 13) 4 H Ibid (Para 25)

p. 897 Copy page pinpoint

[HEMANT GUPTA, J.]

only if it violates the fundamental rights or the right to equality under A Article 14 of the Constitution5.

7. A seven Judge Bench of this Court 6 held that the primary function of the judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation7. The Court while interpreting Articles 32, 21, 141 and 142 of B the Constitution held that prescribing periods at which criminal trial would terminate resulting in acquittal or discharge of the accused or making such directions applicable to all cases in present or in future would amount to judicial law making and cannot be done by judicial directives. The Courts can declare law, interpret law, remove obvious lacunae and fill up the gaps but they cannot entrench upon in the field of C legislation8. The bars of limitation were deleted by this Court on two grounds, first, it amounts to judicial legislation which was not permissible and secondly, it runs counter to the doctrine of binding precedents 9.

8. The Constitution Bench of this Court 10 held that a writ of mandamus cannot be issued to bring Section 3 of the 44th Constitutional D Amendment Act in force. It was held that the Parliament having left to the unfettered judgment of the Central Government, the question as regards the time for bringing the provisions of the 44th Amendment into force, it was not for the court to compel the Government to do what according to the mandate of the Parliament lies in its discretion to do so E when it considered it opportune to do it. Since the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms, it makes it difficult for the Courts to substitute their own judgment for that of Government on the question whether Section 3 of the 44th Amendment should be brought into force. F

9. This Court11 held that the Court cannot direct the legislature to enact a particular law when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to

5 Ibid (Para 29) G 6 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 7 Ibid (Para 25) 8 Ibid (Para 27) 9 Ibid (Para 33) 10 A.K. Roy v. Union of India & Ors., (1982) 1 SCC 271 (Para 51) 11 Mangalam Organics Limited v. Union of India, (2017) 7 SCC 221 (Para 36) H

p. 898 Copy page pinpoint

A enact the law which it has been empowered to do under the delegated legislative authority.

10. In another Constitution Bench judgment of this Court 12, it was held that the duty of judicial review bestowed upon the judiciary is not unfettered and it comes within the ambit of judicial restraint. The B Parliament and Legislative Assemblies exercise sovereign power to enact law and no outside power or authority can issue a direction to enact a particular kind of legislation.

11. In a separate but concurring judgment in Kalpana Mehta authored by D.Y. Chandrachud, J., the Court held as under: C “255. Parliament and the State Legislatures legislate. The executive frames policies and administers the law. The judiciary decides and adjudicates upon disputes in the course of which facts are proved and the law is applied. The distinction between the legislative function and judicial functions is enhanced by the basic structure doctrine. The legislature is constitutionally entrusted with the power to legislate. Courts are not entrusted with the power to enact law. Yet, in a constitutional democracy which is founded on the supremacy of the Constitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution. Entrustment to the judiciary of the power to test the validity of law is an established constitutional principle which co-exists with the separation of powers. Where a law is held to be ultra vires there is no breach of parliamentary privileges for the simple reason that all institutions created by the Constitution are subject to constitutional limitations. The legislature, it is well settled, cannot simply declare that the judgment of a court is invalid or that it stands nullified. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a 12 H Kalpana Mehta & Ors. v. Union of India & Ors., (2018) 7 SCC 1 (Para 42)

p. 899 Copy page pinpoint

[HEMANT GUPTA, J.]

law which remedies the defects which have been pointed out by the court. Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine. That indeed is the basis on which validating legislation is permitted.”

12. The lack of binding nature of the guidelines on the legislature is also evident from the fact that even though directions that are mandatory in nature may be issued within the ambit of Article 142 of the Constitution, but the same cannot be enforced against the legislature as the legislators have absolute and unfettered freedom in terms of Article 194(2) in respect of State Legislatures, which is pari materia with Article 105(2) relating to Parliament. The seven Judges Bench of this Court 13 in the celebrated case of controversy between the Uttar Pradesh Assembly and the High Court held as under: “32. Having conferred freedom of speech on the legislators, clause (2) emphasises the fact that the said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may give in the legislature or any committee thereof. In other words, even if a legislator exercises his right of freedom of speech in violation, say, of Article 211, he would not be liable for any action in any court. Similarly, if the legislator by his speech or vote, is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court. If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any court by this clause. He may be answerable to the House for such a speech and the Speaker may take appropriate action against him in respect of it; but that is another matter. It is plain that the Constitution-makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause (2). Thus, clause (1) confers freedom of speech on the legislators within the legislative chamber and clause 13 Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745 H

p. 900 Copy page pinpoint

A (2) makes it plain that the freedom is literally absolute and unfettered.

40. Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.” E

13. A conspectus of the above judgments, inter alia, among many others, is that the judiciary in exercise of power of judicial review can strike down any legislation which violates fundamental rights or if it is beyond the legislative competence but the courts cannot direct the legislature to frame or enact a law and in a particular manner. The law declared by the Supreme Court is binding on all Courts in India in terms of Article 141 of the Constitution. The directions issued under Article 142 of the Constitution, are binding on every Court in terms of Article 141 of the Constitution. The legislature cannot be said to be Court within the meaning of Article 141 of the Constitution by any stretch of imagination. Article 144 of the Constitution mandates, civil and judicial authorities in India shall act in aid of the Supreme Court meaning thereby executive and judicial authorities shall act in aid of the Supreme Court. The legislature is neither civil or judicial authority who is mandated by the Constitution to act in the aid of Court. The legislature is supreme so as to enact a law falling within its legislative competence. The directions H

p. 901 Copy page pinpoint

[HEMANT GUPTA, J.]

of the court cannot compel the legislature to frame law in that particular manner only. The legislature while enacting laws can legislate in a manner which is not in accordance with the directions issued by the Court to the legislature, even if the Court has specially chosen to do so. The directions of this Court stop outside the four walls of legislature. The judiciary will step in only after a law is enacted to test the legality of a statue on the known principles of judicial review. The Judiciary cannot and should not usurp the powers vested with legislature. The Judiciary cannot legislate in the scheme of the constitution as propounded by many judgments including larger Bench Judgments, which are binding on the smaller strength benches. The directions of this Court in MBA-III are encroaching upon the field reserved for legislature. C (ii) Whether a judgment has to be read in the context in which it was given and cannot be read as a statute, inter alia, in view of the principles that the Court while interpreting a provision cannot generally add word to a statute in view of doctrine of Casus Omissus. D

14. A Constitution Bench14 of this Court has held that Courts should not place reliance on decisions without discussing as to how the factual situation of the matter fits in with the factual situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. This Court further held as under: “12. The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. “Statutes should be construed, not as theorems of Euclid”, Judge Learned Hand said, “but words must be construed with some imagination of the purposes which lie behind them”. (See Lenigh Valley Coal 14 Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors., (2002) 3 SCC 533 (Para 9) H

p. 902 Copy page pinpoint

A Co. v. Yensavage [218 FR 547] .) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [(1990) 1 SCC 277 : AIR 1990 SC 981] . xx xx xx

14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [(2000) 5 SCC 515]) The legislative casus omissus cannot be supplied by judicial interpretative process……”

15. This Court15 held that according to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein, nor what logically flows from the various observations made in the judgment. The said view has been relied upon by the E Constitution Bench of this Court16.

16. This Court17 also held that the observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. The observations must be read in the context in which they appear to have been stated. F

17. This Court18 has observed that judgments are not to be construed as statutes. The words or phrases in judgments are not to be interpreted like provisions of a statute. The words in a judgment should be read and understood contextually and not intended to be taken literally. Such interpretation has been followed by a two Judge Bench of G

15 State of Orissa & Ors. v. Md. Illiyas, (2006) 1 SCC 275 (Para 12) 16 Natural Resources Allocation, in Re, Special Reference No. 1 of 2012 17 Union of India v. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 (Para 15) H 18 Som Mittal v. Government of Karnataka, (2008) 3 SCC 574 (Para 9)

p. 903 Copy page pinpoint

[HEMANT GUPTA, J.]

this Court19 wherein it was held that the ratio of any decision must be understood in the background of the facts of that case.

19. This Court21 observed that the plenary powers of this Court D under Article 142 of the Constitution are inherent in the Court and are “complementary” to those powers which are specifically conferred on the Court by various statutes. The powers conferred on the Court by Article 142 are curative in nature, they cannot be construed as powers which authorize the Court to ignore the substantive rights of a litigant. This power cannot be used to “supplant” substantive law applicable to E the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly. The Court held as under: F “19. …Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.” G

19 Arasmeta Captive Power Company Private Limited & Anr. v. Lafarge India Private Limited, (2013) 15 SCC 414 (Para 32) 20 Shanti Bhushan v. Supreme Court of India & Anr., (2018) 8 SCC 396 21 M.C. Mehta v. Kamal Nath & Ors., (2000) 6 SCC 213 H

p. 904 Copy page pinpoint

A 20. Thus, the Court will not direct to the State or Union to enact any particular law, or amend/ issue any notification for amendment of any statutory Rule or even to direct an Act to be enforced, when the legislature has conferred such power on the executive. The directions of this Court in MBA-III were issued in the peculiar facts to make the Tribunal functional at the earliest rather than mandating legislature to amend the law in a particular manner. The legislature has a right to enact law, which may not be necessarily in terms of the directions of this Court. Such law when enacted by Parliament or the State Legislature, even if contrary to the directions or guidelines issued by the Court, cannot be struck down for the said reason. The legislation can be struck down if the basis of the provision interpreted by the Court is not altered or if it violates the fundamental rights or the right to equality under Article 14 of the Constitution.

21. The questions of law raised in MBA-III were in respect of separation of powers and independence of judiciary in the matter of constitution of Search and Selection Committee; appointment of persons without judicial experience as Judicial Members; failure to provide proper technical specialized expertise; failure to provide for adequate tenure of members; exclusion of advocates for being appointed as members of tribunals; continuing role of the parent department in Search and Selection Committee; the preliminary inquiry by the Central Government for removal of the members is invalid and the Executive’s continuing administrative and financial control over the tribunals.

22. The directions of this Court which are at variance with the Ordinance are as follows:

F “53. The upshot of the above discussion leads this court to issue the following directions: (i) xxx xxx (iii) Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list. (iv) The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. 7Rule 9(2) of the 2020 Rules shall be

p. 905 Copy page pinpoint

[HEMANT GUPTA, J.]

amended to provide that the Vice-Chairman, Vice-Chairperson A and Vice President and other members shall hold office till they attain the age of sixty-seven years. (v) The Union of India shall make serious efforts to provide suitable housing to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the B Union of India shall pay the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals an amount of Rs. 1,50,000/- per month as house rent allowance and Rs. 1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 01.01.2021. C (vi) xxx xxx (ix) The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations. D (x) The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules. (xi) Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. In view of the interim orders passed by the Court E in Rojer Mathew (supra), appointments made during the pendency of Rojer Mathew (supra) were also governed by the parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications directed in the preceding F paragraphs of this judgment. (xii) xxx xxx (xiv) The terms and conditions relating to salary, benefits, allowances, house rent allowance etc. shall be in accordance with the terms indicated in, and directed by this judgment. G (xv) The Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12.02.2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications directed in the preceding paragraphs to those who were appointed after H

p. 906 Copy page pinpoint

A 12.02.2020. While reserving the matter for judgment on 09.10.2020, we extended the term of the Chairpersons, Vice- Chairpersons and members of the Tribunals till 31.12.2020. In view of the final judgment on the 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be in accordance with the applicable Rules as B mentioned above.”

23. The arguments were concluded on 3rd June 2021 but before we could finalize our views, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021 stands notified on 30th June

C 2021. The Search and Selection Committee as ordered by this Court in MBA-III, the Advocate being eligible for appointment in certain Tribunal and option to pay House Rent Allowance in terms of the directions of this Court in MBA-III stands incorporated in such Rules. The questions raised now have to be examined in the light of amended Rules.

D 24. The judgment authored by Justice L. Nageswara Rao has held as under: “43. The permissibility of a legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under: a) The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. (Lohia Machines Ltd. & Anr. v. Union of India & Ors. ((1985) 2 SCC 1987). b) The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. c) Nullification of mandamus by an enactment would be impermissible legislative exercise (See: S.R. Bhagwat & Ors. v.

p. 907 Copy page pinpoint

[HEMANT GUPTA, J.]

25. I have my reservation with respect to the aforementioned conclusions (c) and (d). In Cauvery Water Disputes Tribunal, the State of Karnataka promulgated Karnataka Cauvery Basin Irrigation C Protection Ordinance, 1991 on 25.7.1991. In pursuance of the order passed by this Court in a writ petition, the Tribunal by way of an interim order directed the State of Karnataka to release water from its reservoirs to ensure 205 TMC is available in Tamil Nadu’s Mettur reservoir in a year from June to May vide its order dated 25.6.1991. It is thereafter the Ordinance in dispute was promulgated. It is the said interim order D which was sought to be nullified by enactment of the Ordinance, later substituted by an Act by the State of Karnataka. This Court held as under: “73. The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., E the Inter-State Water Disputes Act which legislation has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provisions of the Ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on June 25, 1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of Karnataka show that since according to the State of Karnataka the Tribunal has no power to pass any interim order or grant any interim relief as it has done by the order of June 25, 1991, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction H

p. 908 Copy page pinpoint

A to pass the interim order or not and whether the order is binding on it or not. Secondly, the State has also presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparian States……….. To the extent that the Ordinance B interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State.” C (Emphasis Supplied)

26. The judgment of this Court in Medical Council of India was again to nullify the judgment of this Court where this Court had struck down the admission of 180 students in Kannur Medical College and Karuna Medical College in the State of Kerala. This Court held as under: D “23. What has been done by the impugned Ordinance by the State Government is clearly entrenching upon the field of judicial review and it was obviously misadventure resorted to. In our considered opinion, it was not at all permissible to the State Government to promulgate the Ordinance/legislate in the matter. Not only the E judgment of the court is nullified and the arbitrariness committed in admissions was glaring, and the decision of the High Court of Kerala which was affirmed by this Court with respect to applications to be entertained if they were online applications has been undone. It was clearly an act of nullifying judgment and is violative of judicial powers which vested in the judiciary. F It was not open for the State Government to nullify the judgment/orders passed by the Kerala High Court or by this Court. It was not a case of removal of a defect in existing law. Various Constitution Bench decisions of this Court have settled the principles of law governing the field. It passes comprehension how the State Government has promulgated the Ordinance in question”. (Emphasis Supplied)

27. In S.R. Bhagwat, the petitioners were senior in the final seniority list but their juniors got promoted on the basis of higher ranking in the provisional seniority list which was earlier operative. The writ

p. 909 Copy page pinpoint

[HEMANT GUPTA, J.]

petitions were allowed wherein the petitioners were directed to be considered for promotion. In implementation of the said judgment, the State granted deemed dates of promotions but denied the consequential monetary benefits. The petitioners filed contempt petitions before the High Court. It was at that stage that an Ordinance was promulgated whereby payment of actual financial benefits was sought to be taken away. The said judgment is clearly not applicable to the facts of present case as the defect was not even attempted to be cured. The legislative action was to deny financial benefits arising out of a judgment, which had attained finality. In the present case, I am of the opinion that except two aspects that are contained in Rules 4(2) and 9(2) of the 2020 Rules, rest of directions were dehors the legality or illegality of the Rules with an idea of making Tribunals being made functional at the earliest.

28. Therefore, three judgments referred hereinabove have to be read in the context of the facts and the issues raised therein. In fact, none of the judgments was to the effect that whatever are the directions of this Court to enact law, it is binding on the legislature. The three judgments arise out of facts, wherein, the defect was not even attempted to be cured but simpliciter, the judgment was sought to be nullified.

29. In respect of conclusion (d), though transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India, but it is equally true that judiciary in exercise of power of judicial review cannot direct legislature to frame any law in a particular manner. Legality and validity of first proviso to Section 184(1) of the Ordinance F

30. The said proviso to Section 184(1) of the Ordinance reads as below: “Provided that a person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member” G

31. I am unable to agree to the opinion that the first proviso to Section 184 prescribing a minimum age of fifty years is an attempt to circumvent the direction issued in MBA-III. The condition of eligibility for appointment as a Judge of a High Court was kept in view while considering the eligibility of advocates as members of Tribunals. H

p. 910 Copy page pinpoint

A However, the Memorandum of Procedure for appointment as judges of the High Court finalized by this Court and forwarded to the Central Government in March, 2017 was that a person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota unless he has completed forty-five years of age on the date of recommendation by the High Court Collegium. Though, in terms of Article B 217 of the Constitution, a candidate becomes eligible for appointment after 10 years of practice as an Advocate. Thus, an Advocate would be eligible for appointment as judge of the High Court around the age of 35 years. The Memorandum of Procedure adopted by the Collegium of this Court prescribed forty-five years of age as the minimum age. I find that eligibility to seek appointment is not solely dependent upon qualification of a candidate but experience and suitability, likely term which a candidate may have are necessary considerations. The relevant part from the memorandum of the collegium is reproduced as under: “17. A person shall not be eligible to be considered for appointment as Judge of a High Court against Bar quota, unless he has completed 45 years of age on the date of recommendation by the High Court Collegium.”

32. In terms of the Constitution read with the Memorandum of Procedure adopted by this Court, an advocate would have maximum tenure of 17 years as a Judge of the High Court, may be another three years as Judge of this Court. On the other hand, an advocate appointed as member of a Tribunal can have a tenure of 17 years, even if 50 is the minimum age for appointment. The tenure of such member is up to the age of 67 years with the possibility of being appointed as the Chairperson. This is not to compare the status of a High Court Judge with that of a F member of a Tribunal. The members would be appointed on the basis of recommendation of the high-powered Search and Selection Committee having judicial dominance. If a member is discharging his functions legally, there is no need to bear any apprehension about his not being re-appointed. The process of re-appointment is again with the High-Powered Search G and Selection Committee with judicial dominance. A provision in the statute cannot be found to be untenable merely for the reason that there is a possibility of not being reappointed.

33. The advocates were not eligible for appointment under 2020 Rules. Therefore, there was no condition of age of eligibility of such H candidates. It may be noted that though this Court discussed the age of

p. 911 Copy page pinpoint

[HEMANT GUPTA, J.]

the candidates eligible for appointment to be “around 45 years” in para A 44, but there was no particular direction qua age.

34. The discussions in the judgment are not to be considered as directions. There is background in which the ultimate directions are issued. Since no directions were issued in respect of eligibility conditions particularly relating to age, thus, fixing of eligible age as fifty years cannot B be treated to be in contradiction to the directions issued in MBA-III. Even if it is contravening to any such direction, the legislature is within its jurisdiction to determine the minimum eligibility age for the purpose of appointment.

35. Mr. R. Gandhi, the President of Madras Bar Association C challenged the provisions of The Companies Act, 1956 as amended by Central Act 11 of 2003 when Part 1B and Part 1C were inserted constituting National Company Law Tribunal and the Appellate Tribunal respectively before the Madras High Court. The High Court allowed the writ petition22 on 30.3.2004. The High Court held that the power of reappointment was read to be a ‘renewal’, apart from rendering many D provisions of the amending Act as illegal in as much as they were in breach of basic constitutional scheme of separation of powers and independence of the judicial function. The Madras High Court held as under: “74. Unless the term of office is fixed as at least five years with E a provision for renewal, except in cases of incapacity, misconduct and the like, and the period for which lien may be retained is fixed at not more than one year, the constitution of the Tribunal cannot be regarded as satisfying the essential requirements of an independent and impartial body exercising judicial functions of the State. xx xx xx

123. In the light of foregoing discussions it is declared that until the provisions in parts 1B and 1C of the Companies Act introduced by the Companies (Amendment) Act, 2002, which have been found to be defective in as much as they are in breach of the basic constitutional scheme of separation of powers and independence of the judicial function, are duly amended, by removing the defects that have been pointed out, it would be unconstitutional to constitute 22 2004 (2) Current Tamil Nadu Cases 561 H

p. 912 Copy page pinpoint

A a Tribunal and Appellate Tribunal to exercise the jurisdiction now exercised by the High courts or the Company Law Board.”

36. In an appeal against the said order, this Court in MBA-I noticed the contention of the Union as under: “11. The Union Government has accepted the finding and agreed B to amend Sections 10-FE and 10-FT of the Act to provide for a five-year term for the Chairman/President/Members. However, the Government proposes to retain the provision for reappointment instead of “renewal”, as the reappointments would be considered by a Selection Committee which would be headed by the Chief C Justice of India or his nominee. As the Government proposes to have minimum eligibility of 50 years for first appointment as a Member of the Tribunal, a Member will have to undergo the process of reappointment only once or twice.”

37. The finding of the High Court that the President or the Chairman was entitled to renewal of term was not accepted. This Court held as under: “120 (ix). The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the field concerned. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.”

38. Subsequently, the Companies Act, 2013 was enacted, repealing the Companies Act, 1956. The said Act provided for establishment of G National Company Law Tribunal and National Company Law Appellate Tribunal. The provisions of the new Companies Act, 2013 were upheld by this Court subject to certain modifications as provided in MBA-II. The provisions of the Act which were not challenged or interfered with are contained in Sections 413 and 414 of the Act. Sections 413 prescribes that a person who has not completed fifty years of age shall not be H eligible to be appointed as a Member or Chairperson.

p. 913 Copy page pinpoint

[HEMANT GUPTA, J.]

39. This Court in MBA-II held the provisions contained under A Section 409(3)(a), (c) and Section 411(3) of the Companies Act, 2013 to be invalid. The appointments of technical members as in the Madras Bar judgment rendered in the year 2010 were to be scrupulously followed. This Court held as under: “28. Having regard to the aforesaid clear and categorical dicta in B 2010 judgment [(2010) 11 SCC 1], tinkering therewith would evidently have the potential of compromising with standards which the 2010 judgment [(2010) 11 SCC 1] sought to achieve, nay, so zealously sought to secure. Thus, we hold that Sections 409(3)(a) and (e) are invalid as these provisions suffer from same vice. Likewise, Section 411(3) as worded, providing for qualifications of Technical Members, is also held to be invalid. For appointment of Technical Members to NCLT, directions contained in sub-paras (ii), (iii), (iv), (v) of para 120 of the 2010 judgment [(2010) 11 SCC 1] will have to be scrupulously followed and these corrections are required to be made in Section 409(3) to set right the defects contained therein. We order accordingly, while disposing of Issue 2.”

40. In MBA-II, the age for appointment of members of the National Law Company Tribunal was fixed as fifty years. Same was not disputed by the present petitioner in the writ petition before the Madras High E Court or before this Court. Therefore, the age of 50 years as the eligibility condition is not off the hat but is based upon previous legislation in respect of members of the National Company Law Tribunal. Thus, the fixation of fifty years of age as the eligibility condition cannot be said to be manifestly arbitrary or violative of any of the Fundamental Rights of any of the candidates which may render such condition of age as illegal. The F argument is based on apprehension that it would be difficult for an advocate appointed after attaining the age of fifty years to resume legal practice after completion of one term, in case he is not reappointed. A person who is competent and good in his work will not find any difficulty to resume his practice but what would happen to his professional career G if his term is not extended is a calculated risk which a candidate shall take at the time of seeking appointment. Such apprehensions as to what will happen in future cannot be a ground to strike down a condition of age in the statute. This Court is not possessed of the expertise to say that it will be difficult for an advocate to resume practice if he is not H

p. 914 Copy page pinpoint

A reappointed. I am unable to agree that the statutory provisions can be struck down on such grounds based on presumed apprehensions.

41. The apprehensions or misuse of a statutory provision is not a ground to declare the provisions of a statute as void. A five Judges Bench of this Court23 held as under: B “33. …This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void. Commenting on a passage in the judgment of the Court of Appeal of Northern C Ireland which stated: “If such powers are capable of being exercised reasonably it is impossible to say that they may not also be exercised unreasonably” and treating this as a ground for holding the statute invalid Viscount D Simonds observed in Belfast Corporation v. O.D. Commission [1960 AC 490 at pp. 520-521] : “It appears to me that the short answer to this contention (and I hope its shortness will not be regarded as disrespect) is that the validity of a measure is not to be determined by its E application to particular cases.… If it is not so exercised (i.e. if the powers are abused) it is open to challenge and there is no need for express provision for its challenge in the statute.” The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that F a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being G improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not

23 Collector of Customs, Madras & Anr. v. Nathella Sampathu Chetty & Anr., AIR 1962 H SC 316

p. 915 Copy page pinpoint

[HEMANT GUPTA, J.]

pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements.”

42. Similar view was reiterated by this Court in number of judgments24. In another judgment25, it was held as under:

24. … It is also necessary to reiterate that a mere possibility of abuse of a provision, does not, by itself, justify its invalidation. The validity of a provision must be tested with reference to its operation and efficiency in the generality of cases and not by the freaks or exceptions that its application might in some rare cases possibly produce. The affairs of government cannot be conducted on principles of distrust. If the selectors had acted mala fide or with oblique motives, there are administrative law remedies to secure reliefs against such abuse of powers. Abuse vitiates any power.” (Emphasis supplied)

43. Therefore, I am of the opinion that in case of failing to secure reappointment, the candidate will not be able to resume practice is based upon apprehensions. Whether they are good or valid grounds to refuse reappointment can be subject matter of judicial review although I am of the opinion that the decision of the high-power Search and Selection Committee not to re-appoint a candidate may not warrant interference in exercise of judicial review. E

Legality and validity of the Second & Third proviso to Section 184(1) of the Ordinance

44. The said proviso reads thus: “Provided further that the allowances and benefits so payable F shall be to the extent as are admissible to a Central Government officer holding the post carrying the same pay: Provided also that where the Chairperson or Member takes a house on rent, he may be reimbursed a house rent subject to such limits and conditions as may be provided by rules.” G

24 Government of Andhra Pradesh & Anr. v. G. Jaya Prasad Rao & Ors., (2007) 11 SCC 528; People’s Union for Civil Liberties & Anr. v. Union of India, (2004) 9 SCC 580; Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 25 Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., (1988) 3 SCC 241 H

p. 916 Copy page pinpoint

A 45. The second proviso is to the effect that allowances and benefits shall be to the extent as are admissible to a Central Government officer holding the post carrying the same pay. The third proviso to Section 184(1) is that where Chairperson or Members take a house on rent, he may be reimbursed a house rent subject to such limits and conditions as may be prescribed. In terms of third proviso, the Tribunal, Appellate B Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021 have been published. As per the Rules now notified, the Chairman, Chairperson, President, Vice Chairman, Vice Chairperson or Vice President shall have option to avail of accommodation to be provided by the Central C Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of Rs. one lakh fifty thousand rupees per month and the Members shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of Rs. one lakh twenty-five thousand rupees per month with effect from the 1st January, 2021. Therefore, the directions issued stands complied with.

46. As a matter of fact, there is a common grievance of the members of the Bar and the litigating parties other than from Delhi that there is a concentration of Tribunals in Delhi which deprives the advocates from other parts of the country to deal with the matters entrusted to the Tribunals. It is also expensive for the litigants to engage professional services in Delhi, which is out of capacity for a large section of the society. In fact, because of housing scarcity and expensive professional services, it will be open to the Government/legislature to shift the principal benches of the certain Tribunals outside Delhi so that concentration of Tribunals in Delhi is minimized which will in turn help the Bar to grow at different places, ensuring affordable administration of justice and resolution of the challenge of scarcity of housing in Delhi. Section 184(7)

G 47. The direction of this Court in Para 53(ix) was that the Union shall make appointments to Tribunals within three months whereas the Ordinance has used the expression that the Central Government shall take a decision on the recommendations of the Committee “preferably within three months”. Both the directions in sub-para (ix) and in sub- H section (7) are only directory. It is well-settled that the use of expression

p. 917 Copy page pinpoint

[HEMANT GUPTA, J.]

‘shall’ or ‘may’ is not determinative of the fact that whether the condition is mandatory or directory. Therefore, there is no reason to set aside the expression ‘preferably’ used in sub-section (7) of Section 184. Such directions were issued in terms of Article 142 of the Constitution which stop at the four walls of the Parliament. The language to be used falls within the legislative competence and do not violate any fundamental right nor can be said to be manifestly arbitrary. Whether the Ordinance nullifies the judgment of this Court in MBA-III without removing the defect in the 2020 Rules?

48. The Petitioner herein has relied upon certain judicial pronouncements to contend that the effect of the Ordinance is to nullify the judgment of this Court in MBA-III without removing the defects in the 2020 Rules. They are produced and analyzed hereinbelow.

49. In a judgment26 relied upon, the levy of the property tax was found to be not legal in view of the language of the Statute. The State legislature thus altered the basis of levy of property tax. Therefore, the said judgment is not appliable to the facts of the present case where the directions were issued dehors the legality of the 2020 Rules.

50. The reliance on another judgment of this Court27 is not tenable wherein a settlement was arrived at regarding payment of bonus effective from April 1, 1973 to March 31, 1977 with four different associations of employees. A writ of Mandamus was issued by the Calcutta High Court. The Payment of Bonus (Amendment) Ordinance, 1975 was thereafter promulgated in September, 1975. The Payment of Bonus Act was not applicable to the Life Insurance Corporation by virtue of Section 32 of the said impugned Act. This Court found that the impugned Act did not set at naught the entire settlement relating to payment of annual cash bonus of Class III and Class IV employees and that too from April, 1

1975. Since the settlement had attained finality as the same was approved by the Board of Directors as well as by the Central Government, and that the Writ of Mandamus was issued by the Calcutta High Court to pay annual cash bonus to the employees, it was held that the judgment can be remedied by way of an appeal or review, but it cannot be disregarded or ignored and must be obeyed by Life Insurance Company.

26 Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., (1969) 2 SCC 283 27 Madan Mohan Pathak & Anr. v. Union of India & Ors., (1978) 2 SCC 50 H

p. 918 Copy page pinpoint

A In S.S. Bola & Ors. v. B.D. Sardana & Ors.28, this Court explained the Judgment in Madan Mohan Pathak. It was found that in as much as six Hon’ble Judges out of seven rested their decision on the ground that the impugned Act violates Article 31(2) of the Constitution and did not consider the enactment in question to be an act of usurpation of judicial power by the legislature. It was held as under: B “189………The majority judgment came to hold that the impugned Act is violative of Article 31 clause (2) as the effect of the Act was to transfer ownership debts due owing to Class III and Class IV employees in respect of annual cash bonus to the Life Insurance Corporation and there has been no provision for payment of any compensation for the compulsory acquisition of these debts. It may be stated that the majority judgment did not consider the question as to whether the legislatures by enacting the Act have usurped the judicial power and have merely declared the judgment of a competent court of law to be invalid. Beg, CJ. in his concurring judgement in para 32 of the judgment, however, has observed that the real object of the Act was to set aside the result of the mandamus issued by the Calcutta High Court, though, it does not mention as such, and therefore, the learned Judge held that Section 3 of the Act would be invalid for trenching upon the judicial power.

E 190. Three other learned Judges, namely, Y.V. Chandrachud, S. Murtaza Fazal Ali and P.N. Shinghal, JJ. agreed with the conclusion of Bhagwati, J. but preferred to rest their decision on the sole ground that the impugned Act violates the provisions of Article 31(2) of the Constitution and in fact they considered it unnecessary to express any opinion on the effect of the judgment F of the Calcutta High Court in Writ Petition No.371 of 1976. Thus out of seven learned Judges, six learned Judges rested their decision on the ground that the impugned Act violates Article 31(2) of the Constitution and did not consider the enactment in question to be an act of usurpation of judicial power by the legislature. G The observation of Beg, C.J., in para 32 does not appear to be in consonance with the several authorities of this Court on the point to be discussed hereafter…….”

28 H (1997) 8 SCC 522

p. 919 Copy page pinpoint

[HEMANT GUPTA, J.]

51. In B.K. Pavitra v. Union of India29, the judgment in Madan A Mohan Pathak has been considered. It was held that the said case did not involve a situation where a law was held to be ultra vires and the basis of the declaration of invalidity of the law was sought to be cured. It was observed as under: “83.2. Indian Aluminium Co. [Indian Aluminium Co. v. State B of Kerala, (1996) 7 SCC 637] , where it was held that : (SCC p. 660, para 49) “49. In Madan Mohan Pathak v. Union of India [Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50 : 1978 SCC (L&S) 103] … From the observations made by Bhagwati, C J. per majority, it is clear that this Court did not intend to lay down that Parliament, under no circumstance, has power to amend the law removing the vice pointed out by the court. Equally, the observation of Chief Justice Beg is to be understood in the context that as long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Thus understood, it is unexceptionable. But it does not mean that the learned Chief Justice intended to lay down the law that mandamus issued by court cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the court.” (emphasis supplied)

84. Madan Mohan Pathak [Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50 : 1978 SCC (L&S) 103] involved a situation where a parliamentary law was enacted to override a F mandamus which was issued by the High Court for the payment of bonus under an industrial settlement. The case did not involve a situation where a law was held to be ultra vires and the basis of the declaration of invalidity of the law was sought to be cured.”

52. Another judgment30 which has been relied upon dealt with an G inter-se water dispute between two states relating to the height of Mullaperiyar Dam. Kerala Irrigation and Water Conservation Act, 200331 29 (2019) 16 SCC 129 30 State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696 31 For short, ‘2003 Act’ H

p. 920 Copy page pinpoint

A was enacted by Kerala legislature, which came into force on 18.09.2003. Such Act was neither referred to nor relied upon by the State of Kerala at the time of hearing by this Court on 27.2.2006. On 18.03.2006, in less than three weeks of the decision of this Court 32, the Kerala State legislature amended the 2003 Act by introducing Kerala Irrigation and Water Conservation (Amendment) Act, 200633, which was the subject matter of judgment in question. The said Act was challenged by the State of Tamil Nadu in an original suit before this Court. An argument was raised that the impugned legislation amounts to usurpation of judicial power inasmuch as Kerala State Legislature has arrogated to itself the role of a judicial body and has itself determined the questions regarding the dam safety and raising the water level when such questions fall exclusively within the province of the judiciary and have already been determined by this Court in its judgment dated 27.02.2006. This Court in an exhaustive judgment held as under: “126. The decision of this Court on 27.02.2006 in the Mullaperiyar D Environmental Protection Forum case was the result of judicial investigation, founded upon facts ascertained in the course of hearing. It was strictly a judicial question. The claim of the State of Kerala was that water level cannot be raised from its present level of 136 ft. On the other hand, Tamil Nadu sought direction for raising the water level to 142 ft. and, after strengthening, to its E full level of 152 ft. The obstruction by Kerala to the water level in the Mullaperiyar dam being raised to 142 ft. on the ground of safety was found untenable, and, in its judgment, this Court so pronounced. xx xx xx F

154. Where a dispute between two States has already been adjudicated upon by this Court, which it is empowered to deal with, any unilateral law enacted by one of the parties that results in overturning the final judgment is bad not because it is affected by the principles of res judicata but because it infringes the doctrine G of separation of powers and rule of law, as by such law, the legislature has clearly usurped the judicial power. xx xx xx

32 Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643 33 H For short, ‘2006 (Amendment) Act’

p. 921 Copy page pinpoint