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Supreme Court nulls govt rule on tribunal posts

The court said the search-cum-selection committees, as envisaged in the rules, are against the constitutional scheme as they dilute the involvement of the judiciary in the process of appointment of members of tribunals and which amounts to encroachment by the executive on the judiciary.

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NEW DELHI: The Supreme Court on Wednesday struck down a rule framed by the Centre to regulate appointment of members to tribunals and appellate tribunals saying the government conferring on itself a dominating and overwhelming voice in appointments is a “negation” of judicial independence. The court said the search-cum-selection committees, as envisaged in the rules, are against the constitutional scheme as they dilute the involvement of the judiciary in the process of appointment of members of tribunals and which amounts to encroachment by the executive on the judiciary. The court directed the government to carry out a fresh exercise in accordance with the principles enumerated earlier by the apex court. “The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities,” said a five-judge Constitution bench of Chief Justice Ranjan Gogoi and Justices N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna.The court held that “these Rules formulated by the Central Government under Section 184 of the Finance Act, 2017, being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this court, are hereby struck down in entirety”.The SC asked the Centre to re-formulate the rules strictly in conformity and accordance with principles delineated by the apex court and said the new rules shall ensure non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind that the chairperson and members appointed after retirement and those inducted from the Bar or from other specialised professions/services constitute two separate and distinct homogeneous classes.The bench also said the Centre should conduct a judicial impact assessment of all the tribunals referable to the Finance Act, 2017 so as to analyse ramifications of changes in their framework and asked the ministry of law and justice to carry out such an exercise and submit findings before the competent legislative authority. It also allowed the Centre to carry out an exercise for amalgamation of existing tribunals and thereafter constitute adequate number of benches commensurate with the existing and anticipated volume of work.The bench noted that the Centre had conferred upon itself a “dominating” voice in deciding appointments as “search-cum-selection committee for all 17 tribunals specified in the schedule is constituted either entirely from personnel within or nominated by the central government or comprises a majority of personnel from the government”. Justice Chandrachud and Gupta wrote separate but concurrent judgments and agreed with the opinion of the CJI.“The central government is the largest litigant before the tribunals constituted under various statutes. Allowing the executive a controlling authority over diverse facets of the tribunals would be destructive of judicial independence which constitutes a basic feature of the Constitution. The 2017 Rules are destructive of judicial independence and are unconstitutional,” Justice Chandrachud said.The court also recommended setting up of an independent statutory body “National Tribunals Commission” to oversee the selection process of members, fixing criteria for appointment, salary, allowances and for removal of chairpersons and members of tribunals.

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