EPFO ENFORCEMENT OFFICER STUDY MATERIAL & BOOKS: INDIAN POLITY TOPIC:What Is Whither Tribunal Independence?
EPFO ENFORCEMENT OFFICER STUDY MATERIAL & BOOKS
POLITY TOPIC:
Recently, the Central Government notified a new set of rules to streamline the appointment process and harmonize the service conditions of members of various statutory bodies.
Reasons Cited by Supreme Court to strike down 2017 rules:
Too much say to the executive: 2017 rules led to the dilution of judicial independence, as the Executive was given too much say in the matter of appointment and removal of members of Tribunals.
Token representation of the judiciary: 2017 rules were violative of principles of independence of the judiciary.In Madras Bar Association(2010) court upheld that the selection committee should comprise the Chief Justice of India or his nominee (chairperson, with a casting vote), a senior judge of the Supreme Court or Chief Justice of the High Court, and secretaries in the Ministry of Finance and Ministry of Law and Justice respectively.
Against the doctrine of separation of powers: Search-cum-Selection Committees for Tribunals were dominated by bureaucrats and nominees of Central Government, with a nominal representation of Chief Justice of India.Supreme Court Advocates on-Record Assn. v. Union of India (Fourth Judges Case): Supreme Court upheld that primacy of judiciary is imperative in selection and appointment of judicial officers including Judges of High Court and Supreme Court.
Conflict of Interest: Executive is a litigating party in most of the cases and dominance of executive in judicial appointments can not be allowed. Rules treated SC judges, HC judges and District Judges equal by making them all eligible for appointment as Presiding Officers.
Independence of tribunal members: Removal process under 2017 Rules vested too much power on the Central Government. The Rules enabled Centre to remove any member on the basis of the recommendation by a Committee constituted by the Centre itself.
What is the issue with reframed 2020 rules?
Domination of executive in 2020 rules: Selection committee composition 2017 rules were dominated by persons nominated by central government.except for NCLAT all other selection committee comprised only one judge and three secretaries to the Government of India.2020 rule: By default, all committees consist of a judge, the president /chairman /chairperson of the tribunal concerned and two secretaries to the Government of India.
Contempt of the court: SC stuck down 2017 rules and strictly directed the government to reframe the rules. However, the 2020 rules also consist of the same error.
When it comes to the 2020 Rules, except for the omission of the expert nominee, nothing has changed with respect to the composition of the Search cum selection committee.
The inclusion of the president/chairman/chairperson of the tribunal as a member of the selection committee is against SC directives.
A person from the Indian Legal Service cannot be considered for appointment as judicial member. For instance: A non-judicial member can become the president/chairman/chairperson. Therefore, when a non-judicial member becomes a member in the selection committee, the Supreme Court judge will be in minority, giving primacy to the executive, which is impermissible.
Less tenure for tribunal judges “an ineffective change”: while striking down 2017 rule SC upheld that the term of office of tribunal members should be minimum 5 to 7 years so that the person who gets refined knowledge and expertise can provide its service for longer-duration. However, In 2020 rules tenure is increased from 3 to 4 years which is a blatant violation of Supreme Court directives.
Mushrooming of tribunals: Powers of High Courts are being divested to the tribunals. However, earlier creation of the National Taxation Tribunal was struck down as unconstitutional by the Supreme Court.
According to 2020 rules, if an advocate has more than 25 years of experience, he can apply to the post of judicial member of various tribunals. It seems absurd to even think that a lawyer with more than 25 years of successful practice would apply for the post of judicial member with a tenure of just four years.
Exclusion of advocates: an advocate can no longer apply to the post of judicial members of CAT, DRAT, etc. Now there is a probability that tribunals will be filled by civil servants.
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