A recent judgement of the Supreme Court in the matter of Union of India vs Madras Bar Association has created a lot of interest in the legal circles. The Supreme Court has correctly invoked its constitutional morality by separating Tribunals from the clutches of the executive. However, I am not going into the contentious issue if the Supreme Court has jurisdiction on taking upon itself to frame the rules, which is subordinate legislation. But, the concern of some lawyers and chartered accountants are mainly relating to the commission that shall select the Tribunal members.
Article 50 of the Constitution discusses separation of judiciary from the state. Concept of independence of the judiciary is a basic structure of the Constitution. The concept is not limited from executive pressure only but it includes independence from many other pressures and prejudices acquired and nourished by the class to which judges belong (C. Ravichandran Iyer v. Justice A.M. Bhattacharya 1995 5 SCC 457). Article 50 plainly reveals the intent of Constitution-makers to immunise the judiciary from any political pressures. (Union of India v. Shankalchand Himatlal Sheth 1977 4 SCC 193).
In the Rojer Mathew case, the Supreme Court had issued mandamus to the government to frame rules for selection of Tribunal members. Subsequently, the government framed the Tribunal Rules, 2020. However, not being satisfied with the Tribunal Rules 2020, the Supreme Court has virtually struck down these rules framed by the government in the Madras Bar Association’s case and directed to frame the rules as per its own directions given in the said case.
In Gainda Ram v. MCD (2010) 10 SCC 715, the Supreme Court held inter alia that, “…67. In the background of the provisions in the Bill and the 2009 Policy, it is clear that an attempt is made to regulate the fundamental right of street hawking and street vending by law, since it has been declared by this Court that the right to hawk on the streets or right to carry on street vending is part of fundamental right under Article 19(1)(g). However, till the law is made the attempt made by NDMC and MCD to regulate this right by framing schemes which are not statutory in nature is not exactly within the contemplation of constitutional provisions discussed above. However, such schemes have been regulated from time to time by this Court for several years as pointed above. Even, orders passed by this Court, in trying to regulate such hawking and street vending, is not law either. At the same time, there is no denying the fact that hawking and street vending should be regulated by law. Such a law is eminently necessary in public interest…” The court further directed the appropriate government to legislate and bring out the law to regulate hawking and the fundamental rights of hawkers.
The Supreme Court has issued following directions to implement:
i. The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India, shall be established to cater to the requirements of the Tribunals.
ii. Instead of the four-member Search-cum-Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members:
(a) The Chief Justice of India or his nominee—Chairperson (with a casting vote).
(b) The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment—member;
(c) Secretary to the Ministry of Law and Justice, Government of India—member;
(d) Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary—member;
(e) Secretary to the sponsoring or parent Ministry or Department—Member Secretary/Convener (without a vote).
This judgement primarily lays down the law that there should be a nodal commission to oversee the working of all Tribunals in India and its members. In order to separate the judiciary from the executive, such nodal commission will also be responsible for selection of members, president, vice-president, chairman and vice-chairman, etc. It also directed the government to allocate separate funds from Consolidated Fund of India to administer these Tribunals.
The primary concern is that the commission which is to be constituted for selection of members, president, vice-president, chairman and vice-chairman does not have any member who has domain expertise in the field. The Supreme Court of India and Supreme Courts of other countries have stressed the need for consulting experts with domain knowledge in deciding the complicated issues. Therefore, for selection of such members who will decide the complicated issue of facts and law in their particular field, it is imperative that the Selection Commission also have members with expertise in such fields.
The writer is Senior Advocate, Bombay High Court. The views expressed are personal.