The Centre has informed the Supreme Court that policy is exclusively a matter for the legislature and the executive, and should not be interfered with by the judiciary, unless it violates fundamental rights or any other provision of the Constitution.
The Union government made the above remark in a reply affidavit, which it filed before the apex court on a batch of pleas challenging the constitutional validity of various provisions of the Tribunal Reforms Act, 2021. The petition assails Sections 3(1), 3(7), 5 and 7(1) of the Tribunal Reforms Act, 2021.
The Centre expressed its displeasure by stating that it is distressed by the fact that both laws and statutory rules made by Parliament and the Executive in areas of pure policy are being held to be void by invoking independence of the judiciary, when such laws and rules do not violate the fundamental rights or any provision of the Constitution and are wholly within competency.
Violates the separation of power: Centre
The Centre stated that it equally believes that the Court striking down these pure matters of policy violates the separation of powers by the judicial wing of the state referring to the four issues, which are held to violate the independence of the Judiciary.
The four issues relate to the tenure of four years of members and chairman of the Tribunals. The fixing of a minimum age of 50 years for appointment, which would be applicable across the board for all members, including advocates, as well as for the Chairpersons. The 2021 ordinance stated that the Central Government shall take a decision on the recommendation of the Search-cum-Selection-Committee (SCSC), preferably within three months.
Last is the direction that the recommendations of the SCSC to Government, that is the Appointments Committee of the Cabinet should be of only single name per vacant post with a wait list available in case of exhaustion of the main list. Nevertheless, the Reforms Act provides in Section 3(7) for the same, that the SCSC shall recommend a panel of two names.
“By applying one’s mind to either the provisions relating to tenure of four years or minimum age of 50 years, or to the panel of two names to be recommended, or for the Central Government to take a decision on the recommendations preferably within three months, one is confused if one were told that all this relates to the independence of the Judiciary. It would be more semantics if, in fact, it has no relationship to the independence of the Members or Chairperson of the Tribunals. Independence would be affected, only if tenure, or terms and conditions, are such that the Executive is able to control the will of the Member or the Chairperson of the Tribunal. With Judicial dominance in the Search-Cum-Selection Committee which recommends the continuance or re-appointment of members, whether for four years or five years, these fears are unfounded,” said the Centre in its 242-page affidavit.
“What is significant is if the separation of powers entrusts to Parliament and the Executive, the exclusive jurisdiction to decide as to what would be the best policy, which would be necessary in public interest, then the principle of separation of powers would stand violated, if the Judiciary interferes with issues of policy and substitutes what it believes would be a better policy,” it added.
“The policy is exclusively a matter for the legislature and the executive, and should not be interfered with by the Judiciary, unless it violates the fundamental rights or any other provisions of the Constitution,” it added.
Duration of tenure of members cannot affect the independence of Judiciary
The Centre said, “The independence of the judiciary cannot be affected by the duration of tenure of the chairperson/member of a statutory tribunal being fixed as four years, with the option of re-appointment or five years. The question of independence of the chairperson/member and/or the tribunal itself could arise only if the conditions of appointment of the chairperson or member would permit the Government to influence or control his/her will.”
It said, “What is most relevant is that any re-appointment of a Chairperson/member will take place only on the basis of a recommendation by the Search-cuni-Selection Committees, in which the judiciary has a dominant voice. Hence, the claim of the independence of the judiciary being adversely affected by a fixed tenure of four years, but not by a fixed tenure of five years, has no substance or merit.
“This would equally apply to the fixation of 50 years as the minimum age for appointment as chairperson or member of a statutory tribunal. The directive in MBA-III that advocates with 10 years of standing would be eligible for appointment was based on the fact that the Constitution permits the appointment of such persons as judges of the High Court. Yes, this rule of 10 years has not resulted in a single appointment having taken place, till date, to any High Court, of a lawyer with only 10 years of professional standing,” the Centre added.
Further it stated, “If for any reason independence of the judiciary is treated as the basis, one could not phrase a provision by declaring that independence is removed, which would ex-facie sound anti-thetical. What is more, independence of the judiciary is not a ground which can be used for testing statutes. A series of Constitution Bench judgements and one of seven judges have held that the basic structure theory can be used only for the purpose of testing constitutional amendments and cannot be used for invalidating statutes, including laws made by Parliament.
“Even assuming that independence would be a ground, which has to be neutralised, it can only be through substantive provisions, which would clearly declare independence of the members and chairperson of the Tribunals. The Reforms Act provides for SCSC with the dominance of the judiciary, which would make recommendations for appointments of the members and the Chairperson and also make recommendations for reappointment on a preferential basis of a member or Chairperson who has completed four years.
“Additionally, based on the suggestions made by the bench which decided MBA-Ill and MBA-IV, the salary of the Chairperson is now Rs 2,50,000 equivalent to that of the Cabinet Secretary and for a member is Rs 2,25,000, equal to that of a Secretary to the Government of India. All allowances payable to these bureaucrats is payable to the members and Chairperson. The reimbursable HRA is fixed at a ceiling limit of Rs 1,50,000 for the Chairperson and Rs 1,25,000 for the members. With all these safeguards being included based on the directions of the Courts, the independence is wholly protected. Nevertheless, to still claim that because of these 4 issues the independence stands compromised is wholly unacceptable to Parliament and the policy enunciated by Parliament,” the Centre said.
The Supreme Court earlier had expressed its anguish over the Central Government for enacting the Tribunal Reforms Act, 2021 in an arbitrary manner, reducing the terms of members & chairman of Tribunals and being identical to the “earlier struck down law”.