Madras Bar Association vs Union Of India

2025 INSC 1330 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO. 1018 OF 2021

MADRAS BAR ASSOCIATION …PETITIONER VERSUS UNION OF INDIA AND ANOTHER …RESPONDENTS WITH WRIT PETITION (C) NO. 626 OF 2021

INDEX

I. INTRODUCTION ......................................................................... 2 II. THE CHALLENGE .................................................................... 5 III. SUBMISSIONS .................................................................... 11 IV. THE TRIBUNALS JURISPRUDENCE ........................................ 16 (i) S.P. Sampath Kumar v. Union of India and Others ............ 17 (ii) R.K. Jain v. Union of India .............................................. 21 (iii) L. Chandra Kumar v. Union of India and Others ............. 22 (iv) Union of India v. R. Gandhi, President, Madras Bar Association .............................................................................. 25 (v) Madras Bar Association v. Union of India and Another ... 35 (vi) Madras Bar Association v. Union of India and Another ... 39 (vii) Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and Others .............................................. 42 (viii) Madras Bar Association v. Union of India and Another ... 48 (ix) Madras Bar Association v. Union of India and Another ... 68 V. ATTORNEY GENERAL’S PLEA TO REFER THE ISSUE TO A LARGER BENCH .......................................................................... 94 VI. ANALYSIS OF THE SUBMISSIONS ....................................... 96 Signature Not Verified VII. THE VALIDITY OF THE IMPUGNED ACT ........................... 116 Digitally signed by DEEPAK SINGH Date: 2025.11.19 14:18:54 IST VIII. PROTECTION EXTENDED ................................................. 129 Reason:

IX. CONCLUSION ................................................................... 132

1 JUDGMENT

B.R. GAVAI, CJI

I. INTRODUCTION

“… the provisions of the Constitution are binding upon

the different organs of the State. Consequently, it is to

be presumed that those who work the Constitution,

those who compose the Legislature and those who

compose the executive and the judiciary know their

functions, their limitations and their duties. It is

therefore to be expected that if the executive is honest

in working the Constitution, then the executive is

bound to obey the Legislature without any kind of

compulsory obligation laid down in the Constitution.

Similarly, if the executive is honest in working the

Constitution, it must act in accordance with the

judicial decisions given by the Supreme Court.

Therefore my submission is that this is a matter of one

organ of the State acting within its own limitations and

obeying the supremacy of the other organs of the

State. In so far as the Constitution gives a

2 supremacy to that is a matter of constitutional

obligation which is implicit in the Constitution itself…

No constitutional Government can function in any

country unless any particular constitutional authority

remembers the fact that its authority is limited by the

Constitution and that if there is any authority created

by the Constitution which has to decide between that

particular authority and any other authority, then the

decision of that authority shall be binding upon any

other organ.”

— Dr. B.R. Ambedkar in the Constituent Assembly on 14th October 1949

1. These observations of Dr. B.R. Ambedkar aptly

encapsulate the foundational principles that must inform the

adjudication of the case at hand. The issues that arise go to

the heart of that constitutional design. They involve questions

concerning the scope and limits of judicial review, the

contours of the doctrine of separation of powers, the manner

in which legislative power is exercised by Parliament, and the

corresponding bounds of executive authority under the

3 Constitution. At their core lies the principle of the rule of law,

which mandates that all institutions derive their legitimacy

from, and remain accountable to, the Constitution. Above all,

this case deals with the delicate constitutional balance among

the three organs of governance, as envisioned by the framers

of the Constitution.

2. Our Constitution mandates the supremacy of the

Constitution. The underlying principles embodied in it guide

not only the judiciary, but also the legislature and the

executive. While the function of the judiciary is to interpret,

protect, and expand these foundational principles, the

legislature and the executive are entrusted with the duty to

give effect to them through law and governance. In their

distinct spheres of action, each organ of the State remains

bound by a common constitutional obligation: respect for and

adherence to the supremacy of the Constitution. It is this

shared responsibility that ensures the unity of purpose within

the framework of the separation of powers.

3. The present case must therefore be examined against

this broader constitutional backdrop, where the mutual

respect and defined boundaries among the three organs of the

4 State are tested in matters that directly concern the balance

between legislative policy and judicial independence. The

validity of the Tribunals Reforms Act, 20211 has been

challenged. However, this challenge cannot be viewed in

isolation, as we shall highlight in subsequent discussion. It

forms part of a continuing constitutional dialogue on the

structure, independence, and functioning of tribunals.

II. THE CHALLENGE

4. The lead petition in this batch inter-alia challenges the

vires of the Impugned Act. Let us look at the provisions of the

Impugned Act. Section 3 empowers the Central Government to

frame rules on the qualifications, appointments, salaries,

allowances, and service conditions of the Chairperson and

Members of Tribunals, notwithstanding anything in prior

judgments or existing laws. These rules account for the

required experience, relevant specialisation, and the scheme

of the said Act. No person below fifty years of age is eligible for

appointment. Appointments are to be made by the Central

1 Hereinafter, “Impugned Act”.

5 Government on the recommendation of a Search-cum-

Selection Committee2.

5. For all Tribunals other than State Administrative

Tribunals, the SCSC is chaired by the Chief Justice of India or

a Supreme Court Judge nominated by him, and includes two

Secretaries to the Government of India, and one additional

Member, who may be the outgoing or sitting Chairperson of

the Tribunal. In case the sitting Chairperson seeks re-

appointment, a retired Supreme Court Judge or retired Chief

Justice of a High Court nominated by the CJI would be a

member. In certain Tribunals such as Industrial Tribunals,

Debt Recovery Tribunals, and others notified by the Central

Government, this additional member must always be a retired

Supreme Court Judge or retired Chief Justice of a High Court.

The Secretary of the concerned Ministry or Department acts

as the Member-Secretary of the Committee, without voting

rights. For State Administrative Tribunals, the SCSC

comprises the Chief Justice of the High Court (Chairman), the

State Chief Secretary, the Chairman of the State Public Service

Commission, and one additional member, subject to similar

2 Hereinafter, “SCSC”.

6 conditions, along with the Secretary/Principal Secretary of the

State General Administration Department as Member-

Secretary. The Chairperson of every SCSC has a casting vote.

The Committee is free to determine its own procedure, and it

must recommend a panel of two names for every vacancy,

upon which the Central Government is expected to act

preferably within three months. Any vacancy or absence

within the Committee does not invalidate the appointments.

6. Section 4 of the Impugned Act provides that the

Central Government may remove a Chairperson or Member of

a Tribunal on the recommendation of the prescribed

Committee and in the manner laid down by rules. Removal

may be ordered if the individual (a) has been declared

insolvent, (b) has been convicted of an offence involving moral

turpitude, (c) has become physically or mentally incapable of

performing the duties of the office, (d) has acquired financial

or other interests that are likely to adversely affect the

discharge of functions, or (e) has abused the position in a

manner prejudicial to the public interest. However, when

removal is proposed on the grounds of incapacity, conflict of

interest, or abuse of position, covered under clauses (c) to (e),

7 the concerned Chairperson or Member must be informed of

the charges and given an opportunity to be heard.

7. Section 5 of the Impugned Act stipulates that, despite

anything contained in earlier judgments or existing laws, the

Chairperson of a Tribunal shall serve for a tenure of four years

or until attaining the age of seventy years, whichever occurs

earlier. Similarly, a Member of a Tribunal shall hold office for

a period of four years or until reaching the age of sixty-seven

years, whichever is earlier. The provision includes a

transitional safeguard: if a Chairperson or Member was

appointed between 26 May 2017 and the notified date, and the

appointment order issued by the Central Government grants

a longer tenure or higher age of retirement than what is

prescribed in this section, then the terms in the original

appointment order will prevail, subject to an upper limit of five

years as the maximum permissible tenure.

8. Section 6 of the Impugned Act provides that the

Chairperson and Members of a Tribunal may be considered for

re-appointment in accordance with the provisions of the said

Act. When evaluating candidates for re-appointment, due

preference must be given to the service already rendered by

8 the individual. All re-appointments are required to follow the

same procedure prescribed for initial appointments under

Section 3(2) of the said Act, meaning they must be made on

the recommendation of the SCSC.

9. Section 7 of the Impugned Act empowers the Central

Government, notwithstanding any prior judgments or existing

laws, to frame rules prescribing the salary of the Chairperson

and Members of a Tribunal. They are entitled to receive

allowances and benefits equivalent to those admissible to a

Central Government officer holding an equivalent pay level.

The provision also allows a higher reimbursement of house

rent, beyond the standard house rent allowance, if the

Chairperson or Member resides in rented accommodation,

subject to limits and conditions specified by rules. Further,

once appointed, neither the salary and allowances nor any

other terms and conditions of service of the Chairperson or

Member may be altered to their disadvantage.

10. The Impugned Act also amends multiple statutes,

including the Industrial Disputes Act, Cinematograph Act,

Copyright Act, Income-tax Act, Customs Act, Patents Act,

SAFEMA, Administrative Tribunals Act, Railway Claims

9 Tribunal Act, SEBI Act, Recovery of Debts and Bankruptcy

Act, Airports Authority of India Act, TRAI Act, Trade Marks Act,

National Green Tribunal Act, Companies Act, and Consumer

Protection Act. In these Acts, references to earlier tribunal

provisions under the Finance Act, 2017 are replaced with

references to the Impugned Act. Several specialised Tribunals

or Appellate Boards are abolished, and their functions are

shifted either to High Courts, Commercial Courts, or

designated authorities.

11. Many sections establishing or regulating Appellate

Boards, Tribunals, or appellate mechanisms are omitted, and

related procedural provisions are updated. Sections 183 and

184 of the Finance Act, 2017, along with the Eighth Schedule,

are deleted. For bodies like the National Consumer Disputes

Redressal Commission, the qualifications, appointments,

tenure, salaries, and removal of members appointed after the

Impugned Act are now governed entirely by the Impugned Act.

12. Section 33 of the Impugned Act provides that, despite

anything contained in existing laws, all persons serving as

Chairpersons, Presidents, Presiding Officers, Vice-

Chairpersons, Vice-Presidents, or Members of the Tribunals,

10 Appellate Tribunals, and other authorities listed in the Second

Schedule shall cease to hold office from the notified date. They

are entitled to compensation of up to three months’ pay and

allowances for the premature termination of their tenure or

contractual service. Officers and employees serving on

deputation in these bodies will automatically revert to their

parent cadre, ministry, or department on the notified date. All

pending appeals, applications, and proceedings, except those

before the Authority for Advance Rulings under the Income-

tax Act, will stand transferred to the court in which they would

originally have been filed had the Impugned Act been in force

at the time, and the court may continue the matter from the

existing stage or any earlier stage, or even conduct a de novo

hearing.

13. The vires of these provisions have been challenged on

various grounds.

III. SUBMISSIONS

14. We have extensively heard Shri Arvind P. Datar and

Shri C.S. Vaidyanathan, learned Senior Counsel appearing for

the Petitioners and Shri Sidharth Luthra, Shri P. S. Patwalia,

Shri Sanjay Jain, Shri Porus F. Kaka, Shri Gopal

11 Sankaranarayanan, Shri Balbir Singh, Shri Gagan Gupta,

Shri Puneet Mittal, Shri Sachit Jolly and Shri B.M. Chatterji,

learned Senior Counsel and Shri Ninad Laud, learned counsel

appearing for the Applicant(s). We have also extensively heard

Shri R. Venkataramani, learned Attorney General for India,

and Ms. Aishwarya Bhati, learned Additional Solicitor General,

appearing for the Respondent-Union of India.

15. The gist of the arguments advanced by the learned

Senior Counsel/counsel appearing for the

Petitioners/Applicants is that:

(i) Several provisions of the Impugned Act, particularly

Sections 3(1), 3(7), 5, and 7(1), violate the

constitutional principles of separation of powers

and judicial independence. By diluting the

judiciary’s role in appointments, tenure, and service

conditions of tribunal members, these provisions

infringe the basic structure and contravene Articles

14, 21 and 50 of the Constitution, as well as binding

decisions of the Court.

(ii) The Impugned Act amounts to an impermissible

legislative overruling of judicial directions,

12 particularly by enabling the executive, through

delegated rule-making powers, to undo safeguards

prescribed by the Court. The delegation of authority

to the executive to frame rules regarding

appointments, allowances, and conditions of

service is excessive and encroaches upon core

judicial functions.

(iii) The Impugned Act also nullifies judicially framed

rules by reintroducing provisions previously struck

down, such as the minimum age requirement, a

truncated four-year tenure, and the process of

recommending multiple names, thereby frustrating

the Court’s directions. These provisions violate the

legitimate expectations and vested rights of sitting

members regarding tenure, reappointment,

allowances, and house rent allowances.

(iv) The Impugned Act imposes arbitrary age and tenure

restrictions that discourage meritorious candidates

below fifty years from joining tribunals. Section 3(7)

of the said Act limits judicial oversight by requiring

the SCSC to forward two names per vacancy and

13 directing the government to act “preferably within

three months.” The executive’s control over

allowances and house rent entitlement

compromises judicial independence, while the

continued failure to establish an independent

National Tribunals Commission leaves tribunals

under executive control, particularly within the

Ministry of Finance.

16. The gist of the arguments advanced by the learned

Attorney General for India appearing for the Respondents:

(i) On behalf of the Union of India, the primary

contention is that courts cannot compel the

legislature to enact a particular law or structure a

statutory framework in a specific manner. Law-

making is a domain reserved for the legislature, and

judicial review cannot be used to prescribe the

contents of legislation or to mandate how

qualifications, age limits, or tenures should be

framed.

(ii) The Union further argues that the power of the

courts to issue mandamus arises only when there

14 is a clear public duty imposed by law. If the statute

does not create an obligation to frame rules or make

appointments in a particular form or within a fixed

timeline, courts cannot direct the executive to do so.

Similarly, non-compliance with judicial directions

that intrude into the policy-making space of the

legislature cannot attract contempt, because the

authority to frame rules is vested in the executive

and Parliament.

(iii) The Parliament is fully competent to redefine

qualifications, eligibility, or selection processes for

tribunals. These matters fall squarely within

legislative policy, and courts are not expected to sit

in judgment over the wisdom of these choices. Even

if judicial guidelines were earlier issued regarding

tribunal appointments or service conditions,

Parliament can modify the underlying legal

framework through a valid law, and doing so would

not amount to overriding judicial authority but

merely exercising its constitutional role. The

independence of the judiciary is also stated to be

15 unaffected where the tenure or service conditions of

tribunal members are prescribed by statute, since

tribunals are creatures of legislation. It has been

added that prescribing age limits or tenures does

not, by itself, compromise judicial independence.

(iv) A statute can only be invalidated for lack of

legislative competence or violation of constitutional

provisions. It cannot be struck down for not

conforming to directions previously issued by the

judiciary or because courts consider an alternative

structure preferable. Ultimately, the Union seeks to

assert that the Impugned Act represents a

legislative policy choice. Parliament’s decisions on

qualifications, age criteria, tenure, and

administrative arrangements for tribunals,

therefore, deserve deference unless they breach

explicit constitutional mandates.

IV. THE TRIBUNALS JURISPRUDENCE

17. To give a full picture of the present case, it is necessary

to trace the historical trajectory to understand how the

16 developments leading up to the Impugned Act have shaped the

current dispute before the Court.

18. To ensure specialised, efficient adjudication and

speedy resolution of specific categories of cases, India

introduced the system of tribunals. Part XIV-A was

incorporated into the Constitution through the Forty-Second

Amendment Act, 1976. Under Article 323-A, Parliament is

empowered to establish administrative tribunals for service-

related matters, while Article 323-B enables the appropriate

legislature to constitute tribunals for other enumerated

subjects.

(i) S.P. Sampath Kumar v. Union of India and Others

19. In pursuance of Article 323-A, Parliament enacted the

Administrative Tribunals Act, 1985, providing for the

establishment of administrative tribunals to adjudicate service

disputes of public servants. The constitutional validity of this

enactment came under challenge before a Constitution bench

in S.P. Sampath Kumar v. Union of India and Others3

where the Court was called upon to consider two principal

3 (1987) 1 SCC 124

17 issues: first, whether the exclusion of the jurisdiction of the

High Courts under Articles 226 and 227 in service matters was

constitutionally permissible, and second, whether the

composition of the tribunals and the method of appointment

of the Chairman, Vice-Chairman, and Members conformed to

the requirements of the Constitution.

20. Writing for the Court, Justice Ranganath Misra (as his

Lordship then was) held that “the Tribunal should be a real

substitute of the High Court-not only in form and de jure but

in content and de facto”. It opined that the Chairman of the

Tribunal “office should for all practical purposes be equated

with the office of Chief Justice of a High Court”, and that a

retiring or retired Chief Justice of a High Court or when such

a person is not available, a Senior Judge of proved ability

either in office or retired should be appointed. The reason was

that judicial discipline generated by experience and training in

an adequate dose in a judicial office is a necessary

qualification for the post of Chairman.

21. Regarding the selection of Vice-Chairman and

members, the Court held that such selection when it is not of

a sitting Judge or retired Judge of a High Court should be done

18 by a high-powered committee with a sitting Judge of the

Supreme Court to be nominated by the Chief Justice of India

as its Chairman. This will ensure selection of proper and

competent people to man these high offices of trust and help

to build up reputation and acceptability.

22. It was further observed that prescribing a tenure of

only five years for the Chairman, Vice-Chairman, and

Members of the Tribunal could act as a deterrent to attracting

competent candidates, particularly from younger age groups

who would retire long before the usual age of superannuation.

Since appointees were required to resign from their previous

posts, a short tenure offered little security or continuity. The

Court noted that such a limited term was neither convenient

for the appointees nor conducive to the effective functioning of

the tribunal system, as members would often leave just as they

had gained adequate expertise in service jurisprudence.

23. The Union government was directed to make changes

in the Act in line with the judgment. In his concurring opinion,

Chief Justice P.N. Bhagwati observed that the position of

Chairperson should not be held by an individual who has

merely served as a Secretary to the Government of India, since

19 such a role does not necessarily involve the development of a

judicial temperament. As regards the appointment of Vice-

Chairpersons and Members, he emphasized that District

Judges and advocates qualified to be appointed as Judges of

the High Court should also be considered eligible for selection.

24. In a review petition filed in the case,4 the Court clarified

that appointments to the Central Administrative Tribunal

should be made through a High-Powered Selection Committee

headed by a sitting Judge of the Supreme Court nominated by

the Chief Justice of India. For State Administrative Tribunals,

a similar committee should be chaired by a sitting Judge of

the concerned High Court nominated by its Chief Justice.

Rejecting the Attorney General’s contention that advocates

lacked administrative experience to serve as Vice-

Chairpersons, the Court held that an advocate qualified to be

a High Court Judge is inherently competent to discharge both

judicial and administrative functions.

25. Insofar as the exclusion of the power of judicial review

exercised by the High Court in service matters under

4 S.P. Sampath Kumar and Others v. Union of India and Others (1987) Supp SCC

734

20 Articles 226 and 227 of the Constitution by virtue of Section

28 of the Administrative Tribunals Act, 1985 is concerned, the

Constitution Bench held that the exclusion of judicial review

was not whole inasmuch as the jurisdiction of this Court

under Articles 32 and 136 of the Constitution had been kept

intact. Though it was held that the power of judicial review is

a basic and essential feature of the Constitution but if any

constitutional amendment made by the Parliament takes away

from the High Court the power of judicial review, in any

particular area, and vests it in any other institutional

mechanism, it would not be violative of the basic structure

doctrine.

(ii) R.K. Jain v. Union of India

26. In R.K. Jain v. Union of India5 a three-judge bench

dealt with a complaint concerning the functioning of the

Customs, Excise and Gold Control Appellate Tribunal, which

was set up by exercising the power conferred by Article

323-B. In his leading opinion, Justice K. Ramaswamy

observed that tribunals established under Articles 323-A and

323-B of the Constitution, or under any statute, are creations

5 (1993) 4 SCC 119

21 of the legislature and cannot claim the same status, parity, or

substitution as High Courts or their Judges. Nevertheless, it

was reiterated that the individuals appointed to such tribunals

exercise judicial or quasi-judicial functions and must,

therefore, possess a judicial approach along with adequate

knowledge and expertise in relevant branches of

constitutional, administrative, and tax law.

(iii) L. Chandra Kumar v. Union of India and Others

27. Subsequently, the judgment in S.P. Sampath Kumar

(supra) was reconsidered by a seven-judge bench in

L. Chandra Kumar v. Union of India and Others6. The

Court held that the High Courts’ power of judicial

superintendence over all courts and tribunals within their

jurisdiction forms part of the basic structure of the

Constitution. While tribunals cannot exercise judicial review

of legislative action to the exclusion of the High Courts or the

Supreme Court, they may perform a supplementary, though

not a substitutive, role in this regard. The Court declared

Article 323A(2)(d) and Article 323B(3)(d) unconstitutional

insofar as they exclude the jurisdiction of the High Courts

6 (1997) 3 SCC 261

22 under Articles 226/227 and the Supreme Court under

Article 32, holding that all tribunal decisions remain subject

to the writ jurisdiction of the Division Bench of the concerned

High Court. It was observed that:

“99. …The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned…”

28. The Court also examined the qualifications and

competence of the individuals appointed to the tribunals, as

well as the question of which authority should exercise

administrative supervision over them. It was held:

“95. …It must be remembered that the setting-up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grass-roots experience would best serve this purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to 23 believe that the Committee would take care to ensure that administrative members are chosen from amongst those who have some background to deal with such cases.”

29. Emphasizing the need for efficient running of these

tribunals, the Court suggested:

“96. It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements…. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.” 97. The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of experts bodies like the LCI [Law Commission of India] and the Malimath Committee in this regard. We, therefore, recommend that the Union of India initiate action in this behalf and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Department.”

24 30. In other words, the Court stated that an independent

nodal body would help secure institutional autonomy and

safeguard the independence of tribunals.

(iv) Union of India v. R. Gandhi, President, Madras Bar Association

31. Independence of tribunals was then emphasized by a

Constitution Bench in Union of India v. R. Gandhi,

President, Madras Bar Association7 (hereinafter “MBA (I)”).

The President of the Madras Bar Association challenged before

the High Court the constitutional validity of an amendment to

the Companies Act, 1956, that established the National

Company Law Tribunal8 and the National Company Law

Appellate Tribunal9. It was argued that the constitution of the

NCLT and the transfer of the entire company jurisdiction of

the High Court to the Tribunal, which is not under the control

of the Judiciary, are violative of the doctrine of separation of

powers and the independence of the Judiciary, which are part

of the basic structure of the Constitution. The High Court

found several provisions to be defective and violative of the

7 (2010) 11 SCC 1 8 Hereinafter, “NCLT”. 9 Hereinafter, “NCLAT”.

25 constitutional principles of separation of powers and judicial

independence. It held that, unless these defects were rectified,

the constitution of the NCLT and NCLAT would be

unconstitutional. The Union Government agreed to amend the

law, including fixing a five-year tenure for the Chairperson,

President, and Members, restricting the post of President to a

serving or retired High Court Judge, and dropping the

provision for Member (Administration).

32. In appeal in relation to other provisions, this Court

emphasized the lack of independence of tribunals:

“64. Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic Boards. Even the dependence of Tribunals on the sponsoring or parent department for infrastructural facilities or personnel may undermine the independence of the tribunal (vide Wade & Forsyth: Administrative Law, 10th Edn., pp. 774 and 777). … 70. …unfortunately tribunals have not achieved full independence. The Secretary of the ‘sponsoring department’ concerned sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning. The statutes constituting Tribunals routinely provide for members of civil services from the sponsoring departments 26 becoming members of the Tribunal and continuing their lien with their parent cadre. Unless wide ranging reforms as were implemented in United Kingdom and as were suggested by L. Chandra Kumar (1997) 3 SCC 261 are brought about, Tribunals in India will not be considered as independent.”

33. MBA (I) thus underscored that without comprehensive

reform, ensuring structural independence in appointments,

funding, and administration, Indian tribunals will remain

quasi-executive rather than quasi-judicial bodies. The Court

gave a warning that, unless tribunals are institutionally

independent, they cannot truly fulfil their constitutional

purpose.

34. On the issue of whether the inclusion of a Technical

Member alongside a Judicial Member affects the validity of the

provisions establishing Tribunals, the Court observed:

“90. But when we say that Legislature has the competence to make laws, providing which disputes will be decided by courts, and which disputes will be decided by Tribunals, it is subject to constitutional limitations, without encroaching upon the independence of judiciary and keeping in view the principles of Rule of Law and separation of powers. If Tribunals are to be vested with judicial power hitherto vested in or exercised by courts, such Tribunals should possess the independence, security and capacity associated with courts. If the Tribunals are intended to serve an area which requires

27 specialized knowledge or expertise, no doubt there can be Technical Members in addition to Judicial Members. Where however jurisdiction to try certain category of cases are transferred from Courts to Tribunals only to expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural laws, there is obviously no need to have any non-judicial Technical Member. In respect of such Tribunals, only members of the Judiciary should be the Presiding Officers/members. Typical examples of such special Tribunals are Rent Tribunals, Motor Accident Claims Tribunals and Special Courts under several Enactments. Therefore, when transferring the jurisdiction exercised by Courts to Tribunals, which does not involve any specialized knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the Judiciary and Rule of Law and would be unconstitutional.”

35. Thus, inclusion of technical members is justified only

when specialized expertise is essential.

36. The Court held that while the Legislature may establish

tribunals and set eligibility criteria for their members, such

provisions are subject to judicial review to ensure that

members are qualified to discharge judicial functions and

uphold public confidence. It emphasized that independent and

impartial adjudication of citizens’ disputes, free from executive

control, is an essential facet of the Rule of Law and a core

28 element of judicial independence under the Constitution. The

Court reiterated that when judicial functions are transferred

from courts to tribunals, such bodies must be proper judicial

tribunals, comprising members of comparable rank, status,

and independence as judges of the courts they replace, with

similar security of tenure. Technical members should be

appointed only where specialized expertise is essential.

Indiscriminate appointment of such members undermines

judicial independence. While the legislature may determine

the structure and qualifications for tribunals, these provisions

remain subject to judicial review to ensure they do not erode

judicial standards or the separation of powers.

37. The Court also held that though “the validity of the

provisions of a legislative act cannot be challenged on the

ground it violates the basic structure of the constitution, it can

be challenged as violative of constitutional provisions which

enshrine the principles of Rule of Law, separation of power and

independence of Judiciary.” Applying this principle, the Court

held that “if a Tribunal is packed with members who are drawn

from the civil services and who continue to be employees of

different Ministries or Government Departments by

29 maintaining lien over their respective posts, it would amount

to transferring judicial functions to the executive which would

go against the doctrine of separation of power and

independence of judiciary.”

38. The Court further observed that the Legislature,

presumed to act in accordance with the rule of law, must

ensure that when it substitutes tribunals for courts, their

standards match those of the regular judiciary. The rule of law

demands an independent and impartial judiciary, manned by

persons of competence, ability, and impeccable character.

Therefore, when tribunals take over the functions of High

Courts, their judicial members must possess qualifications

and integrity comparable to High Court judges, including a

strong legal background, independent outlook, and good

reputation. Technical members, on the other hand, must be

persons of recognized standing with specialized expertise in

the tribunal’s subject area. The Court cautioned that only long

administrative experience cannot substitute for judicial

temperament, which requires fairness, reasoned decision-

making, and visible impartiality.

30 39. The Court held that Technical Members must be of at

least Secretary or Additional Secretary rank with proven

competence and integrity, otherwise lowering eligibility

standards would erode public confidence in tribunals. It was

further held that while civil service officers may appropriately

serve as Technical Members in Administrative Tribunals due

to their knowledge of government functioning, this does not

qualify them for tribunals requiring specialized technical

expertise, such as Company Law Tribunals. Tribunals should

not become posts of convenience for civil servants lacking

domain knowledge. The Court emphasized that only experts

relevant to the tribunal’s field, such as engineers in technical

tribunals or military officers in armed forces tribunals, should

serve as Technical Members.

40. The Court also noted that allowing tribunal members

to retain their lien with their parent ministries undermines

judicial independence, as such members would continue to

think and act as civil servants. While not questioning the

integrity of officers, the Court stressed that public perception

of independence, impartiality, and fairness of members is

crucial. The Court also held that Technical Members of

31 Company Law Tribunals must have expertise in company law

or related fields; mere civil service experience does not

constitute such expertise. It rejected the assumption that

judges lack the necessary skills or that civil servants or

professionals from unrelated fields like science or medicine are

qualified. The inclusion of technical experts is justified only in

areas requiring specialized professional knowledge, not in

purely legal domains like company law.

41. In addition to the changes agreed upon by the Union of

India, the Court held that the Act may be made operational by

making the following amendments to the Act:

“120. … (i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-section 2(c) and (d) of Section 10-FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members. (ii) As the NCLT takes over the functions of High Court, the members should as nearly as possible 32 have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub- section (2) and Clauses (a) and (b) of sub-section (3) of section 10-FD which provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in Central or State Government, being qualified for appointment as Members of Tribunal, are invalid. (iii) A 'Technical Member' presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as 'experts' qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid. (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 20 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid. (v) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as Technical Members.

33 (vi) In regard to category of persons referred in clause (g) of sub-section (3) at least five years experience should be specified. (vii) Only Clauses (c), (d), (e), (g), (h), and the latter part of clause (f) in sub-section (3) of section 10-FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal. (viii) Instead of a five-member Selection Committee with the Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10-FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee – Chairperson (with a casting vote); (b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member; (c) Secretary in the Ministry of Finance and Company Affairs - Member; and (d) Secretary in the Ministry of Law and Justice -Member. (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

34 they should be able to attract younger members who will have a reasonable period of service. (x) The second proviso to Section 10-FE enabling the President and members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year. (xi) To maintain independence and security in service, sub-section (3) of section 10-FJ and Section 10-FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India. (xii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department. (xiii) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members.”

(v) Madras Bar Association v. Union of India and Another

42. Subsequently, the constitutional validity of the

National Tax Tribunal10 Act, 2005, was challenged in Madras

Bar Association v. Union of India and Another11

10 Hereinafter, “NTT”. 11 (2014) 10 SCC 1

35 (hereinafter referred to as MBA (II)). The NTT Act was declared

unconstitutional for diluting the independence of the judiciary

and tribunals. Writing the lead opinion, Chief Justice Khehar

held that allowing the Central Government to determine the

jurisdiction, composition, and transfer of NTT benches

compromised judicial independence, since the Government

itself would be a litigant in all cases before the Tribunal. The

Court held that for the NTT Act to be valid, its Chairperson

and Members must enjoy the same independence and security

as High Court judges. Granting the Central Government

control over the jurisdiction and posting of Members

compromised that independence, exposing them to potential

pressure or punitive transfers. Hence, the NTT Act failed to

insulate the Tribunal from executive influence.

43. Referring to L. Chandra Kumar (supra) and MBA (I),

the Court reiterated that non-judicial or technical members

can only be appointed where specialized expertise is essential,

not where purely legal questions are involved. Since the NTT

was constituted to decide substantial questions of law across

diverse subjects such as tax, company, contract, and property

law, only persons with legal qualifications and substantial

36 experience in law could competently discharge these

functions. Appointing accountant or technical members

without legal expertise would dilute judicial standards and

violate the independence of the judiciary. Hence, the Court

held that the NTT Act failed to meet constitutional standards.

44. The Court also held that Section 7 of the NTT Act was

unconstitutional as it failed to ensure judicial independence

in the selection process. Unlike administrative tribunals

subordinate to High Courts, the NTT was meant to replace

High Courts, and therefore its Chairperson and Members had

to be appointed through a process similar to that for High

Court judges.12 The Court held that the inclusion of Central

Government Secretaries, whose ministries would themselves

appear as litigants before the NTT, in the selection committee

12 It was held: “130. …The manner of appointment of Chairperson/Members to the NTT will have to be, by the same procedure (or by a similar procedure), to that which is prevalent for appointment of judges of High Courts. Insofar as the instant aspect of the matter is concerned, the above proposition was declared by this Court in Union of India v. Madras Bar Association (2010) 11 SCC 1, wherein it was held, that the stature of the Members who would constitute the tribunal, would depend on the jurisdiction which was being transferred to the tribunal. Accordingly, if the jurisdiction of the High Courts is being transferred to the NTT, the stature of the Members of the tribunal had to be akin to that of the judges of High Courts. So also the conditions of service of its Chairperson/Members. And the manner of their appointment and removal, including transfers. Including, the tenure of their appointments.”

37 undermined impartiality and breached constitutional

conventions meant to preserve the separation of powers.13

45. The Court observed that under Section 8 of the NTT

Act, the Chairperson and Members were appointed for a term

of five years, with eligibility for reappointment for another five

years. It agreed with the petitioners therein that the possibility

of reappointment would compromise the independence of the

Tribunal, as members might decide cases with an eye on

securing another term rather than exercising independent

judgment. Since the NTT replaced the jurisdiction of High

Courts, all aspects of appointment and tenure had to remain

free from executive interference. For these reasons, the Court

declared Section 8 of the NTT Act unconstitutional.

13 It was held: “131. Section 7 cannot even otherwise, be considered to be constitutionally valid, since it includes in the process of selection and appointment of the Chairperson and Members of the NTT, Secretaries of Departments of the Central Government. In this behalf, it would also be pertinent to mention, that the interests of the Central Government would be represented on one side, in every litigation before the NTT. It is not possible to accept a party to a litigation, can participate in the selection process, whereby the Chairperson and Members of the adjudicatory body are selected. This would also be violative of the recognized constitutional convention recorded by Lord Diplock in Hinds v. R., 1977 AC 195, namely, that it would make a mockery of the constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices, to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices, should not be appointed in the manner and on the terms prescribed for appointment of Members of the judicature. For all the reasons recorded hereinabove, we hereby declare Section 7 of the NTT Act, as unconstitutional.”

38 (vi) Madras Bar Association v. Union of India and Another

46. Another judgment to be referred here is Madras Bar

Association v. Union of India and Another14 (hereinafter

MBA (III)). The validity of Companies Act 2013, which replaced

the earlier Act of 1956, was challenged. It was contended that

the provisions governing the structure, composition, and

selection process of the NCLT and NCLAT under the

Companies Act, 2013, mirror those earlier provisions whose

vires were declared unconstitutional by the MBA (I) judgment

in 2010. The creation of NCLT and NCLAT was upheld, but

several provisions were declared to be invalid for deviating

from the MBA (I) judgment.

47. The Court rejected the government’s justification that

the shortage of officers at the Additional Secretary level

warranted allowing Joint Secretaries to serve as Technical

Members, holding that such reasoning was legally untenable

and contrary to the binding 2010 MBA (I) judgment. It

emphasized that the earlier decision had cautioned against the

gradual erosion of judicial independence through dilution of

14 (2015) 8 SCC 583

39 qualifications and standards for those exercising judicial

functions. Any deviation, the Court held, would compromise

the safeguards so firmly secured in 2010. Accordingly,

Sections 409(3)(a) and (c) and 411(3) of the Companies Act,

2013 were declared invalid, and the directions in paragraph

120 of the 2010 MBA (I) judgment were ordered to be followed

for appointments.

48. The Court further held that the composition of the

Selection Committee under Section 412(2), comprising five

members with a majority from the executive, violated the 2010

MBA (I) judgment. The proper composition should be a four-

member committee chaired by the Chief Justice of India or his

nominee, with a casting vote to ensure judicial primacy. Since

the existing provision undermined that principle, Section

412(2) was struck down as invalid. The Court directed the

government to promptly amend the provisions to bring them

in line with its directions so that the NCLT and NCLAT could

begin functioning with full independence and integrity.

49. After this line of judgments, Parliament enacted the

Finance Act, 2017, which subsumed provisions relating to the

appointment, tenure, service conditions, and functioning of

40 members across various tribunals under a single legislative

umbrella. Part XIV of the Act introduced an extensive

framework titled “Amendments to Central Acts to Provide for

Merger of Tribunals and Other Authorities and Conditions of

Service of Chairpersons, Members, etc.” A key provision under

this Part was Section 184, which authorizes the Union

Government, through notification, to make rules concerning

the qualifications, appointment, tenure, salary, allowances,

resignation, removal, and other service conditions of the

Chairperson, Vice-Chairperson, President, Vice-President,

Presiding Officer, or Members of various tribunals and

appellate authorities specified in Column (2) of the Eighth

Schedule.

50. The first proviso to Section 184 empowered the Central

Government to prescribe the term of office, subject to a

maximum of five years, with eligibility for reappointment. The

second proviso sets the upper age limits at seventy years for

Chairpersons, Presidents, and Presiding Officers (for instance,

of the Securities Appellate Tribunal) and sixty-seven years for

Vice-Chairpersons, Vice-Presidents, and other Members (such

as those of the Industrial Tribunal or Debts Recovery

41 Tribunal). Sub-section (2) further guarantees that the salary,

allowances, or other service conditions of a member cannot be

altered to their disadvantage after appointment.

51. The Eighth Schedule lists nineteen tribunals,

identifying the statutes under which each was originally

constituted. Section 183 overrides those parent enactments,

mandating that, from the notified “appointed date,”

appointments to the listed tribunals must comply with Section

184 of the Finance Act. However, the provision safeguards

incumbents already in office before the appointed date,

ensuring that they continue under their existing terms and

conditions until completion of tenure. Pursuant to Section

184, the Central Government framed the “Tribunal, Appellate

Tribunal and Other Authorities (Qualifications, Experience and

Other Conditions of Service of Members) Rules, 2017”.15

(vii) Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and Others

52. The constitutional validity of Part XIV and the 2017

Rules was assailed before a Constitution Bench in Rojer

Mathew v. South Indian Bank Limited represented by its

15 Hereinafter, “2017 Rules”

42 Chief Manager and Others16 on multiple grounds, including

excessive delegation. Writing for the majority in the

Constitution Bench, Chief Justice Gogoi upheld the validity of

Section 184 of the Finance Act, 2017, observing that the power

to prescribe qualifications, selection procedures, and service

conditions of tribunal members need not remain exclusively

with the legislature “for all times and purposes”. The majority

accepted the learned Attorney General’s contention that

Section 184 aimed to bring uniformity and harmonization

across diverse tribunals. It clarified that if any delegated

legislation made under Section 184 exceeds the limits of the

parent statute or violates constitutional principles, such rules

can be struck down individually without affecting the

constitutionality of the rule-making power. Applying this

principle, the Court struck down the 2017 Rules.

53. The majority, however, found that the 2017 Rules

weakened the independence of tribunals by allowing excessive

executive control. It was held:

“140. …Independence of the institution refers to sufficient degree of separation from other branches of the government, especially when the branch is a litigant or one of the parties before the tribunal. 16 (2020) 6 SCC 1

43 Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres – economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence.”

54. It held that the composition of the Search-cum-

Selection Committees under the 2017 Rules, dominated by

executive nominees with minimal judicial representation,

“is an attempt to keep the judiciary away from the process of

selection and appointment of Members, Vice-Chairman and

Chairman of Tribunals.” This violated the doctrine of

separation of powers and undermined the independence of the

judiciary and tribunals. It stated:

“148. Composition of a Search-cum-Selection Committee is contemplated in a manner whereby appointments of Member, Vice President and President are predominantly made by nominees of the Central Government. A perusal of the Schedule to the Rules shows that save for token representation of the Chief Justice of India or his nominee in some Committees, the role of the judiciary is virtually absent. 149. …The exclusion of the Judiciary from the control and influence of the Executive is not limited to traditional Courts alone, but also includes Tribunals since they are formed as an alternative to Courts and perform judicial functions.” 44 55. The Court further held that since the Executive is often

a party to litigation before tribunals, it cannot be permitted to

play a dominant role in appointing their members.

Drawing from the Fourth Judges Case,17 the Court

emphasized that executive control must be excluded from the

appointment process of bodies performing judicial or quasi-

judicial functions. It concluded that the composition of the

Search-cum-Selection Committees under the 2017 Rules

violated the constitutional scheme, as it diluted judicial

involvement and amounted to executive encroachment on the

independence of the judiciary.

56. Directions were given to the Union of India for framing

of fresh set of Rules in accordance with the judgment. As an

interim order, it was directed that appointments to the

Tribunal/Appellate Tribunal and the terms and conditions of

appointment shall be in terms of the respective statutes before

the enactment of the Finance Bill, 2017.

57. In his concurring opinion, Justice D.Y. Chandrachud

(as his Lordship then was) observed that vesting the executive

17 Supreme Court Advocates-on-Record Association and Another v. Union of India

(Recusal Matter) (2015) 5 SCC 808

45 with the power to frame rules governing tribunals has a direct

bearing on their independence, as it allows the executive to

influence key aspects of their functioning and composition. In

his judgment, Chandrachud, J. observed thus:

“326. The basic postulate of our Constitution is that every authority is subservient to constitutional supremacy. No authority can assume to itself the ultimate power to decide the limits of its own constitutional mandate. Judicial review is intended to ensure that every constitutional authority keeps within the bounds of its constitutional functions and authority. In holding a constitutional institution within its bounds, judicial review does not trench upon the doctrine of separation of powers. The adjudicatory power vests in the Supreme Court as a constitutional court. In adjudicating on whether there has been a violation of a constitutional mandate in passing a Bill as a Money Bill, judicial review does not traverse beyond the limit set by the separation of powers. On the contrary, the independence of judicial tribunals has been consistently recognised by this Court as an inviolable feature of the basic structure of the Constitution. Determination of the norms of eligibility, the process of selection, conditions of service, and those regulating the impartiality with which the members of the tribunals discharge their functions and their effectiveness as adjudicatory bodies is dependent on their isolation from the executive. By leaving the rule making power to the uncharted wisdom of the executive, there has been a self-effacement by Parliament. The conferment of the power to frame rules on the executive has a direct impact on the independence of the tribunals. 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.” 46 58. Justice Chandrachud endorsed the suggestion of the

amicus curiae to have an independent statutory body called

the “National Tribunals Commission” to oversee the selection

process of members, criteria for appointment, salaries and

allowances, introduction of standard eligibility criteria, for

removal of Chairpersons and Members, and meeting the

requirement of infrastructural and financial resources.

59. Justice Deepak Gupta, in his opinion, held that the

qualifications for appointment to tribunals must be specified

in the parent legislation and cannot be delegated to the

executive. While matters such as pay, allowances, and other

service conditions may be delegated, the determination of

qualifications is an essential legislative function. He further

observed that even if one assumes qualifications could be

delegated, the legislation should have contained clear

guidelines governing them. It was paradoxical, he noted, that

while the Act laid down some guidance on service conditions,

it provided none regarding the essential qualifications for

appointment. He held that Section 184 of the Finance Act,

2017 suffered from excessive delegation, as it provided no

legislative guidelines for determining qualifications or

47 eligibility for tribunal appointments, thereby granting the

executive unfettered discretion. Justice Chandrachud agreed

with Justice Gupta that the qualifications of members to

tribunals constitute an essential legislative function and

cannot be delegated.

60. Pursuant to the judgment in Roger Mathew (supra),

the Union government notified the “Tribunal, Appellate

Tribunal and other Authorities [Qualification, Experience and

Other Conditions of Service of Members] Rules, 2020”,18 which

governed the qualifications and appointment of members, the

procedure for inquiries into misconduct, as well as their house

rent allowance and other service conditions.

(viii) Madras Bar Association v. Union of India and Another

61. The constitutional validity of the 2020 Rules was

challenged in Madras Bar Association v. Union of India

and Another19 (hereinafter “MBA (IV)). It was contended that

the composition of the Search-cum-Selection Committees

under the 2020 Rules failed to ensure judicial dominance.

The petitioners therein also argued that the appointment of

18 Hereinafter, “2020 Rules” 19 (2021) 7 SCC 369

48 non-judicial persons to posts meant for judicial members or

presiding officers was contrary to earlier judgments of the

Court. Further, the fixed tenure of four years prescribed for

members was alleged to be inconsistent with previous judicial

directions mandating a longer term to secure independence. It

was also pointed out that advocates had been excluded from

eligibility for appointment to most tribunals. Finally, the

petitioners therein submitted that the continued executive

control over appointments and service conditions reflected a

clear breach of the constitutional principles of judicial

independence and separation of powers.

62. At the outset, the three-judge Bench observed that:

“1. This Court is once again, within the span of a year, called upon to decide the constitutionality of various provisions concerning the selection, appointment, tenure, conditions of service, and ancillary matters relating to various tribunals, 19 in number, which act in aid of the judicial branch. That the judicial system and this Court in particular has to live these déjàvu moments, time and again (exemplified by no less than four constitution bench judgments) in the last 8 years, speaks profound volumes about the constancy of other branches of governance, in their insistence regarding these issues. At the heart of this, however, are stakes far greater: the guarantee of the rule of law to each citizen of the country, with the concomitant guarantee of equal protection of the law. This judgment is to be read as a sequel, and together with

49 the decision of the Constitution Bench in Rojer Mathew v. South Indian Bank Limited (2020) 6 SCC 1.”

63. The Court noted that the impugned 2020 Rules

replicate the 2017 Rules in respect of the constitution of the

Search-cum-Selection Committees, insofar as they do not

ensure judicial dominance. The Court accepted the learned

Attorney General’s assurance that the Chief Justice of India or

his nominee, as Chairperson of the Search-cum-Selection

Committee, would be given a casting vote to ensure judicial

dominance in tribunal appointments. It also approved the

submission that, ordinarily, the Chairperson of a tribunal

would be a retired Supreme Court Judge or Chief Justice of a

High Court. The Court also accepted the learned Attorney

General’s submission that the 2020 Rules would be amended

to provide that whenever the reappointment of a Tribunal’s

Chairperson or President is under consideration, they shall be

replaced on the Search-cum-Selection Committee by a retired

Supreme Court Judge or retired Chief Justice of a High Court,

nominated by the Chief Justice of India.

64. The Court further held that the Secretary of the

sponsoring or parent Department shall act as the Member-

50 Secretary or Convener of the Search-cum-Selection

Committee, but shall not have any voting rights in its

proceedings. It was held:

“33. It has been repeatedly held by this Court that the Secretaries of the sponsoring departments should not be members of the Search-cum-Selection Committee. We are not in agreement with the submission of the learned Attorney General that the Secretary of the sponsoring department being a member of the Search-cum-Selection Committee was approved by this Court in Union of India v. Madras Bar Association (2010) 11 SCC 1 and it would prevail over the later judgment in Madras Bar Association v. Union of India (2014) 10 SCC 1. We have already referred to the findings recorded in paragraph 70 of the judgment in Union of India v. Madras Bar Association (2010) 11 SCC 1 that the sponsoring department should not have any role to play in the matter of appointment to the posts of Chairperson and members of the Tribunals. Though the ultimate direction of the Court was to constitute a Search- cum-Selection Committee for appointment of members to NCLT and NCLAT of which Secretary, Ministry of Finance and Company Affairs is a member, the ratio of the judgment is categorical, which is to the effect that Secretaries of the sponsoring departments cannot be members of the Search-cum-Selection Committee. We, therefore, see no conflict of opinion in the two judgments as argued by the learned Attorney General. However, we find merit in the submission of the learned Attorney General that the presence of the Secretary of the sponsoring or parent department in the Search-cum- Selection Committee will be beneficial to the selection process. But, for reasons stated above, it is settled that the Secretary of the parent or sponsoring Department cannot have a say in the process of selection and service conditions of the members of Tribunals. Ergo, the Secretary to the sponsoring or 51 parent Department shall serve as the Member- Secretary/Convener to the Search-cum-Selection Committee and shall function in the Search-cum- Selection Committee without a vote.”

65. The Court directed the Government of India to

constitute Search-cum-Selection Committees in line with

earlier judgments. To summarize, the Chief Justice of India or

his nominee shall act as Chairperson, joined by the Tribunal

Chairperson (if a retired Supreme Court or High Court Chief

Justice) and two Government Secretaries. Where the Tribunal

is not headed by a judicial member, the Committee shall

include a retired Supreme Court or High Court Chief Justice

nominated by the CJI, along with Secretaries from the Law

Ministry and another non-parent department. The Secretary

of the parent department shall serve only as Member-

Secretary or Convener, without voting rights.

66. The Court held that the recommendations of the

Search-cum-Selection Committee must be final, and the

executive should have no discretion in tribunal appointments.

However, taking note of practicalities, it also held that the

Search-cum-Selection Committee may recommend one

additional candidate to be placed on a waiting list. It was held:

52 “35. Rule 4 (2) of the Rules postulates that a panel of two or three persons shall be recommended by the Search-cum-Selection Committee from which the appointments to the posts of Chairperson or members of the Tribunal shall be made by the Central Government…….” 36. Accordingly, we direct that Rule 4(2) of the 2020 Rules shall be amended and till so amended, that it be read as empowering the Search-cum-Selection Committee to recommend the name of only one person for each post. However, taking note of the submissions made by the learned Attorney General regarding the requirement of the reports of the selected candidates from the Intelligence Bureau, another suitable person can be selected by the Search-cum-Selection Committee and placed in the waiting list. In case, the report of the Intelligence Bureau regarding the selected candidate is not satisfactory, then the candidate in the waiting list can be appointed.”

67. The Court held that the 2020 Rules are “not in

compliance” with the principles established in MBA (I) and

Rojer Mathew (supra). The 2020 Rules prescribed a short

tenure for tribunal members, which the Court had

consistently found to be harmful to the independence and

effectiveness of tribunals. It stated:

“39. This Court directed the extension of the tenure of the members of the Tribunal from three years to seven or five years subject to their eligibility in the case of Union of India v. Madras Bar Association (2010) 11 SCC 1. This Court was of the opinion that the term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, the term would be over. In 53 the said judgment it was further observed that the Tribunals would function effectively and efficiently only when they are able to attract younger members who have a reasonable period of service. In spite of the above precedent, a tenure of three years was fixed for the members of Tribunals in the 2017 Rules. While setting aside the 2017 Rules, this Court in Rojer Mathew (2020) 6 SCC 1 held that a short period of service of three years is anti-merit as it would have the effect of discouraging meritorious candidates to accept the posts of judicial members in the Tribunals. In addition, this Court was also convinced that the short tenure of members increases interference by the executive jeopardizing the independence of the judiciary.”

68. The Court held that the four-year tenure prescribed

under Rules 9(1) and 9(2) of the 2020 Rules was unjustified

and contrary to earlier judgments emphasizing longer terms

for tribunal independence. It directed the Government to

amend the Rules, fixing the tenure of the Chairperson,

President, or Chairman at five years or until the age of 70, and

for Vice-Chairpersons and Members at five years or until the

age of 67, whichever is earlier. It stated:

“40. …Rule 9(1) of the 2020 Rules provide for a term of four years or till a Chairman or Chairperson or President attains the age of 70 years whichever is earlier. No rationale except that four years is more than three years prescribed in the 2017 Rules (described as too short, in Roger Mathew (2020) 6 SCC 1) was put forward on behalf of the Union of India. In so far as the posts of Vice Chairman or Vice- Chairperson or Vice-President and members are

54 concerned, Rule 9(2) fixes the tenure as four years or till they attain the age of 65 years whichever is earlier. In view of the law laid down in the earlier judgments, we direct the modification of the tenure in Rules 9(1) and 9(2) of the 2020 Rules as five years in respect of Chairman or Chairperson, Vice Chairman or Vice-Chairperson and the members. Rule 9(1) permits a Chairman, Chairperson or President of the Tribunal to continue till 70 years which is in conformity with Parliamentary mandate in Section 184 of the Finance Act. However, Rule 9(2) provides that Vice Chairman and other members shall hold office till they attain 65 years. We are in agreement with the submission made by the learned Amicus Curiae that under the 2020 Rules, the Vice Chairman, Vice-Chairperson or Vice-President or members in almost all the Tribunals will have only a short tenure of less than three years if the maximum age is 65 years. We, therefore, direct the Government to amend Rule 9 (1) of the 2020 Rules by making the term of Chairman, Chairperson or President as five years or till they attain 70 years, whichever is earlier and other members dealt with in Rule 9(2) as five years or till they attain 67 years, whichever is earlier.”

69. The Court also noted that although the 2020 Rules do

not expressly provide for reappointment, Section 184 of the

Finance Act, 2017 permits it. Noting the learned

Attorney General’s submission that members of tribunals

shall be eligible for reappointment, the Court held that

reappointment for at least one term “shall be provided to the

persons who are appointed to the Tribunals at a young age by

giving preference to the service rendered by them.”

55 70. The Court was not satisfied with the mandate of the

Rule 15 of the 2020 Rules, which provided that the

Chairperson and the other members of the Tribunals shall be

entitled to house rent allowance at the same rate admissible

to officers of the Government of India holding grade ‘A’ posts

carrying the same pay. The Court held that the Government of

India must make earnest efforts to provide suitable housing

for tribunal Chairpersons and Members. It directed for the

following change in the said Rule:

“43. Experience has shown that lack of housing in Delhi has been one of the reasons for retired Judges of the High Courts and the Supreme Court to not accept appointments to Tribunals. At the same time, scarcity of housing is also a factor which needs to be kept in mind. The only way to find a solution to this problem is to direct the Government of India to make serious efforts to provide suitable housing to the Chairperson and the members of the Tribunals and in case providing housing is not possible, to enhance the house rent allowance to Rs.1,25,000/- for members of Tribunals and Rs.1,50,000/- for the Chairman or Chairperson or President and Vice Chairman or Vice Chairperson or Vice-President of Tribunals. In other words, an option should be given to the Chairperson and the members of the Tribunals to either apply for housing accommodation to be provided by the Government of India as per the existing rules or to accept the enhanced house rent allowance. This direction shall be effective from 01.01.2021.”

56 71. It was further contended that the 2020 Rules

deliberately excluded advocates from appointment as judicial

members in most tribunals by imposing an arbitrary 25-year

practice requirement, which was absent in earlier laws and

rules. It was argued that such exclusion contradicts the

Finance Act, 2017 and previous court rulings recognizing

advocates (qualified to be High Court judges) as eligible

judicial members. The amicus added that the 25-year

threshold would discourage capable advocates from applying

and lead to less competent selections, suggesting instead a

15-year practice requirement and inclusion of advocates even

in single-member tribunals like Debt Recovery Tribunals.

The learned Attorney General defended the rule as a policy

decision aimed at ensuring parity with Indian Legal Service

officers but agreed to amend the 2020 Rules to make

advocates with 25 years of experience eligible for such

appointments. He further submitted that, since advocates

typically attain seniority around age 45, the 25-year criterion

would make them eligible around age 47–48, making tribunal

appointments a viable and attractive option, especially with

the possibility of reappointment. On this point, the Court held:

57 “46. In view of the submission of the learned Attorney General that the 2020 Rules will be amended to make Advocates eligible for appointment to the post of judicial members of the Tribunals, the only question that remains is regarding their experience at the bar… As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal. 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) 11 SCC 1 and Madras Bar Association v. Union of India (2015) 8 SCC 583. 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 law while considering them for appointment as judicial members.”

72. The Court set out its reasoning for reducing the

eligibility criteria to allow younger advocates to be appointed

as judicial members in tribunals in the following terms:

“50. We would wish to emphasize here that the setting up of tribunals, and the subject matters they are expected to deal with, having regard to the challenges faced by a growing modern economy, are matters of executive policy. When it comes to personnel who would operate these tribunals (given that the issues they decide would ultimately reach this Court, in appellate review or in some cases, judicial review), competence, especially in matters of law as well as procedure to be adopted by such judicial bodies, becomes matters of concern for this Court. These tribunals discharge a judicial role, and with respect to matters entrusted to them, the

58 jurisdiction of civil courts is usually barred. Therefore, wherever legal expertise in the particular domain is implicated, it would be natural that advocates with experience in the same, or ancillary field would provide the “catchment” for consideration for membership. This is also the case with selection of technical members, who would have expertise in the scientific or technical, or wherever required, policy background. These tribunals are expected to be independent, vibrant and efficient in their functioning. Appointment of competent lawyers and technical members is in furtherance of judicial independence. Younger advocates who area round 45 years old bring in fresh perspectives. Many states induct lawyers just after 7 years of practice directly as District Judges. If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy and enthusiasm are inducted. 25 years of practice even with a five-year degree holder, would mean that the minimum age of induction would be 48 years: it may be more, given the time taken to process recommendations. Therefore, a tenure without assured re-engagements would not be feasible. A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.”

73. The provision that made the members of the Indian

Legal Service eligible for appointment as judicial members in

certain tribunals was also under challenge. This was upheld

by the Court for the following reasons:

59 “49. As we have already held that Advocates are entitled to be considered as judicial members of the Tribunals, we see no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The judgment of Union of India v. Madras Bar Association (2010) 11 SCC 1 did not take note of the above points relating to the experience of members of Indian Legal Service at the bar. The Indian Legal Service was considered along with the other civil services for the purpose of holding that the members of Indian Legal Service are entitled to be appointed only as technical members. In the light of the submission made by the learned Attorney General and the Amicus Curiae, we hold that the members of Indian Legal Service shall be entitled to be considered for appointment as a judicial member subject to their fulfilling the other criteria which advocates are subjected to. In addition, the nature of work done by the members of the Indian Legal Service and their specialization in the relevant branches of law shall be considered by the Search- cum-Selection Committee while evaluating their candidature.”

74. The Court noted that under Rule 8 of the 2020 Rules,

the Union Government conducts a preliminary scrutiny of

complaints against tribunal members before referring them to

the Search-cum-Selection Committee for inquiry. The Court

agreed with the learned Attorney General’s clarification that

the initial scrutiny is meant only to weed out frivolous

complaints and that the Government shall implement the

Committee’s recommendations. The Court agreed with this

60 interpretation and accepted the learned Attorney General’s

submission.

75. The Court also observed that the growing pendency of

cases in tribunals is largely due to vacancies caused by delays

in appointments. Emphasizing the need to ensure speedy

justice, it directed the Government of India to complete

appointments within three months of receiving the Search-

cum-Selection Committee’s recommendations.

76. The Court rejected the learned Attorney General’s

contention that the 2020 Rules should be deemed effective

retrospectively from 26th May 2017, the date on which the

2017 Rules came into force. It held that, since the 2017 Rules

had already been struck down in Rojer Mathew (supra), the

2020 Rules, notified on 12th February 2020, could operate only

prospectively. The Court further clarified that subordinate

legislation cannot have retrospective effect unless expressly

authorized by the parent statute.

77. The Court held that appointments made before the

enforcement of the 2020 Rules, including those during the

pendency of Rojer Mathew (supra) and pursuant to its interim

orders, shall be governed by the respective parent Acts and

61 earlier Rules. However, appointments made after

12th February 2020, the date the 2020 Rules came into force,

shall be governed by those Rules, subject to the modifications

directed by the Court.

78. The Court also directed the Union of India to establish

a National Tribunals Commission at the earliest. It was

observed that creating such a body would strengthen the

credibility and independence of tribunals and build public

confidence in their functioning. It emphasized that tribunals’

continued dependence on their parent ministries for

administrative and financial needs keeps them under

executive control, undermining judicial autonomy. Judicial

independence, the Court noted, can be ensured only when

tribunals have access to adequate infrastructure and

resources independent of the executive. As an interim

measure, until the Commission is constituted, the Court

directed the establishment of a separate “Tribunals Wing”

within the Ministry of Finance to handle and finalize all

administrative matters relating to tribunals.

62 79. The Court summarized its directions as follows:

“60. The upshot of the above discussion leads this court to issue the following directions: 60.1 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. 60.2 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

63 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). Till amendments are carried out, the 2020 Rules shall be read in the manner indicated. 60.3 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. 60.4 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. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain the age of sixty-seven years. 60.5 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 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

64 allowance and Rs. 1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 01.01.2021. 60.6 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. 60.7 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. 60.8 Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search- cum-Selection Committee in matters of disciplinary actions shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government. 60.9 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. 60.10 The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules. 60.11 Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the Tribunals concerned. In view of the interim orders passed by the Court in Rojer Mathew (2020) 6 SCC 1, appointments made during the

65 pendency of Rojer Mathew (2020) 6 SCC 1 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 paragraphs of this judgment. 60.12 Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Such appointments are upheld, and shall not be called into question on the ground that the Search-cum- Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved. 60.13 In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment. 60.14 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. 60.15 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 12.02.2020. While reserving the matter for judgment on 09.10.2020 Central Administrative Tribunal (Principal Bench) Bar Assn. v. Union of India 2020 SCC OnLine SC 1124, we extended the term of the Chairpersons, Vice- 66 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 mentioned above.”

80. The Court also expressed concern over the

Government’s repeated failure to implement its directions

regarding tribunals, noting that such disregard undermines

judicial independence and compels repeated litigation. It

emphasized that tribunals are integral to the constitutional

system of justice and must function independently, effectively,

and in a balanced manner between judicial and expert

competence. The Court warned that continued executive non-

compliance leads to inefficiency and increased court burden.

Accordingly, it directed the Government to strictly implement

all directions issued by it to ensure tribunal independence and

to prevent further litigation by the Madras Bar Association or

others on the same issue.

81. After the decision in MBA (IV), the Tribunal Reforms

(Rationalisation and Conditions of Service) Ordinance, 202120

was promulgated on 4th April 2021, introducing amendments

20 Hereinafter, “2021 Ordinance”

67 to the Finance Act, 2017. The first proviso to Section 184(1)

created a bar on individuals below 50 years of age from being

appointed as Chairperson or Member of a tribunal. The second

and third provisos, read together, equated the allowances and

benefits of tribunal members with those of Central

Government officers drawing equivalent pay. Further,

Section 184(7) mandated that the Selection Committee

recommend a panel of two names for each post, with the

Central Government required to decide within three months,

notwithstanding any court judgment or order. Additionally,

Section 184(11), deemed to have effect from 26th May 2017,

limited the tenure of Chairpersons and Members to four years,

with retirement ages of 70 years and 67 years, respectively.

For those appointed between 26th May 2017 and 4th April

2021, if their appointment orders specify a higher tenure or

retirement age, it shall prevail but be capped at five years.

(ix) Madras Bar Association v. Union of India and Another

82. The validity of these provisions of the 2021 Ordinance

and Sections 184 and 186 (2) of the Finance Act, 2017 as

amended by the 2021 Ordinance was challenged in Madras

68 Bar Association v. Union of India and Another21

(hereinafter MBA (V)) on the ground of violating the principles

of separation of powers and independence of judiciary, and

being contrary to directions issued in a series of judgments

issued by the Court from MBA (I) to MBA (IV).

83. In response, the learned Attorney General argued that

Parliament is empowered to cure defects identified by the

Court through fresh legislation and that its collective wisdom

should not be overridden by judicial intervention. He

maintained that determining the service conditions of tribunal

members is a matter of legislative policy, warranting judicial

restraint. Directions issued by the Court in the absence of

legislation, he said, are merely suggestions, not binding. He

argued that a subsequent law cannot be struck down for

deviating from such directions, and judicial review of the

Ordinance must be confined to the standard grounds of review

applicable to legislation.

84. At the outset of his analysis, Justice Nageshwar Rao,

speaking for the Court, noted that the directions given by the

Court in MBA (IV) are “in the nature of mandamus”. He struck

21 (2022) 12 SCC 455

69 down the first proviso of the amended Article 184(1) of the

Finance Act 2017 for being violative of its previous judgments.

It was held that the minimum age limit of 50 years under the

first proviso to Section 184(1) was “an attempt to circumvent”

the ruling in MBA (IV), which had struck down the earlier 25-

year experience requirement for advocates. The Court found

the provision unconstitutional for violating Article 14 and the

doctrine of separation of powers, as it discouraged young

advocates from applying and undermined judicial

independence. It stated that the judgment of the Court in MBA

(IV) was “frustrated by an impermissible legislative override.”

It was further directed that the Income-Tax Appellate

Tribunal22 appointments pursuant to the 2018 advertisement

be finalized by considering candidates aged 35 to 50 years as

eligible.

85. The Court held that the second and third provisos to

Section 184(1) were unconstitutional, as they contradicted the

directions in MBA (IV) regarding the provision of adequate

housing and allowances for tribunal members. It was held:

22 Hereinafter, “ITAT”.

70 “56. …By no stretch of imagination can it be said that the said provisos are a result of curative legislation. The direction issued by this Court in MBA (3)23 for payment of HRA was to ensure that decent accommodation is provided to Tribunal Members. Such direction was issued to uphold independence of the judiciary and it cannot be subject matter of legislative response. A mandamus issued by this Court cannot be reversed by the legislature as it would amount to impermissible legislative override. Therefore, the second proviso, read with the third proviso, to Section 184(1) is declared as unconstitutional.”

86. The Court, however, referred to a notification issued by

the Ministry of Finance on 30th June 2021, amending the 2020

Rules through the Tribunal (Amendment) Rules, 2021. This

notification substituted the previous rule to enhance the

house rent allowance24 for tribunal members and

chairpersons. The amendment, effective retrospectively from

1st January 2021, allowed Chairpersons, Presidents, and Vice-

Chairpersons to receive an HRA of ₹1,50,000 per month, and

Members and Presiding Officers ₹1,25,000 per month, or to

opt for government accommodation. The Court held that this

amendment was consistent with its earlier directions in MBA

(IV) regarding the provision of suitable housing to ensure

23 In the judgment, it is referred to as “MBA (III)”, as the judgment did not discuss the

decision of Madras Bar Association v. Union of India in 2015, which dealt with the provisions of the Companies Act, 2013 24 Hereinafter, “HRA”

71 judicial independence, and therefore, no further directions

were necessary on the issue of HRA.

87. Section 184(7) mandated that the Selection Committee

recommend a panel of two names for each post, with the

Central Government required to decide preferably within three

months, notwithstanding any court judgment or order was on

similar line to Rule 4(2) of the 2020 Rules. As mentioned

before, the Court in MBA (IV) had directed to amend the 2020

Rules to provide that the Search-cum-Selection Committee

shall recommend one person for appointment in each post in

place of a panel of two or three persons for appointment to

each post, and that one more name could be recommended to

be included in the waiting list. In defence of the 2021

Ordinance, the learned Attorney General argued that Court

cannot direct the legislature to make law, and that the

directions in MBA (IV) “can only be taken to be a suggestion”.

The Court rejected this argument and struck down Section

184(7) as amended by the 2021 Ordinance. It held:

“60. …The Court, as a wing of the State, by itself is a source of law. The law is what the Court says it is. To clarify the position relating to Article 141 vis-à-vis Article 142, it has been held by this Court in Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381 that

72 directions given under Article 142 are not law laid down by the Supreme Court under Article 141. Any order not preceded by any reason or consideration of any principle is an order under Article 142. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in Union of India v. Karnail Singh (1995) 2 SCC 728, it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. “Declaration of law” as contemplated in Article 141 of the Constitution is the speech express or necessarily implied by the highest Court of the land. The law declared by the Supreme Court is binding on all courts within the territory of India under Article 141, whereas, Article 142 empowers the Supreme Court to issue directions to do complete justice. Under Article 142, the Court can go to the extent of relaxing the application of law to the parties or exempting altogether the parties from the rigours of the law in view of the peculiar facts and circumstances of the case (State of Punjab v. Rafiq Masih (2014) 8 SCC 883). Sufficient reasons were given in MBA (IV)25 to hold that executive influence should be avoided in matters of appointments to tribunals - therefore, the direction that only one person shall be recommended to each post. The decision of this Court in that regard is law laid down under Article 141 of the Constitution. The only way the legislature could nullify the said decision of this Court is by curing the defect in Rule 4(2). There is no such attempt made except to repeat the provision of Rule 4(2) of the 2020 Rules in the Ordinance amending the Finance Act, 2017. Ergo, Section 184(7) is unsustainable in law as it is an attempt to override the law laid down by this Court……….”

25 In the judgment, it is referred to as “MBA (III)”, as the judgment did not discuss the

decision of Madras Bar Association v. Union of India in 2015, which dealt with the provisions of the Companies Act, 2013

73 88. The Court held that mere repetition of the same

contents of Rule 4(2) of the 2020 Rules by placing them in

Section 184(7) is “an indirect method of intruding into judicial

sphere which is proscribed”.

89. The Court also struck down the second part of Section

184(7), which provided that the Government shall take a

decision regarding the recommendations made by the Search-

cum-Selection Committee, preferably within a period of three

months. It was held:

“61. …The tribunals which are constituted as an alternative mechanism for speedy resolution of disputes have become non-functional due to the large number of posts which are kept unfilled for a long period of time. Tribunals have become ineffective vehicles of administration of justice, resulting in complete denial of access to justice to the litigant public. The conditions of service for appointment to the posts of Chairpersons and Members have been mired in controversy for the past several years, thereby, adversely affecting the basic functioning of tribunals. This Court is aghast to note that some tribunals are on the verge of closure due to the absence of Members. The direction given by this Court for expediting the process of appointment was in the larger interest of administration of justice and to uphold the rule of law. Section 184(7) as amended by the Ordinance permitting the Government to take a decision preferably within three months from the date of recommendation of the SCSC is invalid and unconstitutional, as this amended provision simply seeks to negate the directions of this Court.”

74 90. The Court also struck down Section 184(11) inserted

in the 2017 Act, which fixed the tenure of the Chairperson and

Member of a tribunal at four years, notwithstanding anything

contained in any judgment, order or decree of any court.

It held:

“62. …After perusing the law laid down by this Court in MBA-I (2010) 11 SCC 1 and Rojer Mathew (2020) 6 SCC 1 which held that a short stint is anti-merit, we directed the modification of tenure in Rules 9(1) and 9(2) as five years in respect of Chairpersons and Members of tribunals in MBA (IV).26 This Court declared in SCC para 60.4 that the Chairperson, Vice-Chairperson and the Members of the tribunals shall hold office for a term of five years and shall be eligible for reappointment. The insertion of Section 184(11) prescribing a term of four years for the Chairpersons and Members of tribunals by giving retrospective effect to the provision from 26.05.2017 is clearly an attempt to override the declaration of law by this Court under Article 141 in MBA (IV). Therefore, clauses (i) and (ii) of Section 184(11) are declared as void and unconstitutional.”

91. However, the Court upheld the retrospectivity given to

the proviso to Section 184 (11), i.e., to appointments that were

made to the posts of Chairperson or Members between

26th May 2017 and the notified date of the 2021 Ordinance,

4th April 2021. It held:

26 In the judgment, it is referred to as “MBA (III)”, as the judgment did not discuss the

decision of Madras Bar Association v. Union of India in 2015, which dealt with the provisions of the Companies Act, 2013

75 “63. …The proviso lays down that if the tenure of office or age of retirement specified in the order of appointment issued by the Government is greater than what is specified in Section 184(11), the term of office or the age of retirement of the Chairperson or Members shall be as specified in the order of appointment subject to a maximum term of office of five years. In other words, the term of office of Chairperson and Members of tribunals who were appointed between 26.05.2017 and 04.04.2021 shall be five years even though the order of appointment issued by the Government has a higher term of office or age of retirement which may involve the term of office being more than 5 years in practice… … 64.2 …It is understood that while inserting sub- section (11) in Section 184 in the Finance Act, 2017 and giving it retrospective effect from 26.05.2017, the Ordinance has attempted to cure the defect as was pointed out by this Court in terms of retrospective application while considering the 2020 Rules. However, the implications are not relevant for clauses (i) and (ii) of Section 184(11) which are declared as void and unconstitutional for the reasons mentioned above.”

92. In the process, interim directions given by this Court

in Kudrat Sandhu v. Union of India and Another27are also

nullified. It would be relevant to refer to the directions issued

by this Court in Kudrat Sandhu (supra) on 9th February 2018.

After taking the consent of the learned Attorney General and

making modifications incorporating his suggestions, this

27 Writ Petition (C) No.279 of 2017 With Connected Matters

76 Court held that all selections to the post of Chairperson/

Chairman, Judicial/Administrative Members shall be for a

period as provided in the Act and the Rules in respect of all

tribunals. On 16th July 2018, this Court directed that persons

selected as Members of ITAT can continue till the age of 62

years and persons who were holding the post of President till

65 years. By an order dated 21st August 2018, this Court

clarified that a person selected as Member, Customs, Excise

and Sales Tax Appellate Tribunal28 shall continue till the age

of 62 years while a person holding the post of President can

continue till the age of 65 years. Though, there is nothing

wrong with the proviso to Section 184(11) being given

retrospective effect, the appointments made pursuant to the

interim directions passed by this Court cannot be interfered

with. This Court in Virender Singh Hooda and Others v.

State of Haryana and Another29 upheld the retrospectivity

of the legislation which had been challenged but the

appointment of the petitioners therein pursuant to a direction

of the Court were saved. It was held that the law does not

permit the legislature to take back what has been granted in

28 Hereinafter, “CESTAT”. 29 (2004) 12 SCC 588

77 the implementation of the Court’s decision and such a course

is impermissible. Similarly, in S.R. Bhagwat and Others v.

State of Mysore30, it was declared that a mandamus against

the respondent-State giving financial benefits to the

petitioners therein cannot be nullified by a legislation. It is also

relevant to point out that even interim orders passed by this

Court cannot be overruled by a legislative act, as discussed

above. While making it clear that the appointments that are

made to the CESTAT on the basis of interim orders passed by

this Court shall be governed by the relevant statute and the

rules framed thereunder, as they existed prior to the Finance

Act, 2017, this Court upheld the retrospectivity given to the

proviso to Section 184 (11). To clarify further, all appointments

after 4th April 2021 shall be governed by the 2021 Ordinance,

as modified by the directions contained herein.

93. Justice Rao concluded that the first and second

provisos to Section 184(1) (fixing a minimum age of 50 years

and altering HRA provisions), Section 184(7) (requiring two

names per post and government decision within three

months), and Section 184(11) (fixing a four-year tenure) were

30 (1995) 6 SCC 16

78 unconstitutional as they violated the separation of powers,

judicial independence, rule of law, and Article 14. He further

emphasized that it is imperative for all authorities to take

urgent steps to fill vacancies in tribunals without delay,

stressing that access to justice and public confidence in the

impartial functioning of tribunals must be restored and

strengthened.

94. In his concurring opinion, Justice Ravindra Bhat dealt

with the argument of the Union of India that when a legislation

or legislative instrument (such as an ordinance in this case) is

questioned, its validity can be scrutinized only by considering

its impact on some express provision of the constitution, and

not on any concept or notion such as separation of powers and

judicial independence. He held:

“79. The challenges to executive or legislative measures based on violation of the twin concepts of separation of powers and independence of the judiciary have to be seen in terms of their impacts, not at one point in time, but cumulatively, over a time continuum… … 81. In all these decisions, this court’s scrutiny was based upon its role as the guardian of the constitution and, more specifically, independence of the judiciary. If one were asked to pinpoint any specific provision of the constitution that this court relied upon while holding the enacted provisions to 79 be falling afoul of, there would be none. It is too late now to contend that independence of the judiciary and separation of powers are vague concepts based on which Parliamentary reenactment cannot be invalidated. 82. …The Attorney General’s assertion that the executive or indeed the Parliament acts within its rights in interpreting the Constitution, and therefore this court should adopt a deferential standard in matters of policy are therefore insubstantial, and also disquieting. As conceded by the Union, if a law (passed validly in exercise of its exclusive power by the Parliament on its interpretation of the Constitution) violates any express provision or principle that lies at the core of any express provision or provisions, this Court’s voice is decisive and final. 83. Pertinently, in matters of independence of the judiciary or arrangement of courts or tribunals, when these provisions come up for interpretation, this court would apply a searching scrutiny standard in its judicial review to ensure that the new body, court, tribunal, commission or authority created to adjudicate (between citizens and government agencies or departments, citizens and citizens, or citizens and corporate entities) are efficient, efficacious and inspire public confidence. … 86. Parliament has, over the years, created several tribunals and commissions which exercise judicial functions that would ordinarily fall within the jurisdiction of courts; they would also have been subjected to the supervisory jurisdiction of High Courts under Article 227. This gradual “hiving off” of jurisdiction from the courts, therefore, calls for a careful and searching scrutiny to ensure that those who approach these bodies are assured of the same kind and quality of justice, infused with what citizens expect from courts, i.e., independence, fairness, impartiality, professionalism and public confidence. These considerations are relevant, given that “policy” choices adopted by the executive or legislature in the 80 past, when it concerned dispensation of justice through courts, were the subject matter of scrutiny under judicial review by courts. ...

89. This court, therefore, as the ultimate guardian of the Constitution, and the rule of law, which it is sworn to uphold, has been asserting its role in regard to matters of appointment, and other conditions of service of judges of district and other courts. Since tribunals function within the larger ecosystem of administration of justice, and essentially discharge judicial functions, this court is equally concerned with the qualifications, eligibility for appointment, procedure for selection and appointment, conditions of service, etc of their members. This court’s concern, therefore, is unlike any other subject matter of judicial review. It cannot be gainsaid that if tenures of tribunals’ members are short: say two years, or if their salaries are pegged at unrealistically low levels, or if their presiding members are given no administrative control or powers, the objective of efficient, fair, and impartial justice delivery would be defeated. It cannot then be argued that each of these are “policy” matters beyond the court’s domain.”

95. Justice Bhat distinguished judicial review concerning

tribunals from that involving pure policy matters, explaining

that the Court’s active intervention is justified in ensuring the

independent and efficient functioning of tribunals. He stated:

“90. Ordinarily in pure ‘policy’ matters falling within Parliamentary or executive domain, such as economic, commercial, financial policies, or other areas such as energy, natural resources etc, this court’s standard of judicial review is deferential. In almost all subject matters over which legislative bodies enact law, the wisdom of the policy is rarely

81 questioned; it is too well recognised that in such matters, judicial review extends to issues concerning liberties of citizens, and further, whether the particular subject matter falls within the legislative field of the legislative body concerned. In matters where the executive implements those laws, the scrutiny extends to further seeing the legality and constitutionality of such action. Where there is no law, the court considers whether executive competence to act is traceable to the particular legislative field under the Constitution, and whether the executive action sans law, abridges people’s liberties. Deference to matters executive appears to be highest, when the country faces emergencies and existential threats. However, in matters that concern administration of justice, especially where alternative adjudicatory forums are created, the court’s concern is greater. This is because the Constitution does not and cannot be read so as to provide two kinds of justice: one through courts, and one through other bodies. The quality and efficacy of these justice delivery mechanisms have to be the same, i.e., the same as that provided by courts, as increasingly, tribunals adjudicate disputes not only between state agencies and citizens, but also between citizens and citizens as well as citizens and powerful corporate entities. Therefore, it is the “equal protection” of laws (under Article 14 of the Constitution of India), guaranteed to all persons, through institutions that assure the same competence of its personnel, the same fair procedure, and the same independence of adjudicators as is available in existing courts, that stands directly implicated. Consequently, when this court scrutinizes any law or measure dealing with a new adjudicatory mechanism, it is through the equal protection of law clause under Article 14 of the Constitution.”

96. Justice Bhat observed that no parent enactment

governing the establishment of various tribunals prescribed

82 any age qualification (whether as a minimum age requirement

or an upper age bar) as part of the eligibility criteria for

appointments. He further noted that such an age condition

was neither incorporated in the provisions of the Finance Act,

2017, nor introduced in the 2017 Rules, which were

subsequently struck down in Rojer Mathew (supra). An

indirect age restriction was, for the first time, introduced

through the 2020 Rules framed under the Finance Act, 2017,

by mandating that otherwise qualified advocates and

chartered accountants must have a minimum of 25 years of

practice. The Court in MBA (IV) found this requirement to be

unsustainable and directed that it be appropriately amended.

Subsequently, and seemingly in response, the impugned

Ordinance amended the Finance Act, 2017 to introduce, for the

first time, a direct minimum age requirement of 50 years.

Justice Bhat struck down the minimum age requirement,

holding:

“92. The challenge to the first proviso to Section 184, which prescribes the age qualification, has to be seen from several angles. First, the underlying parent statutes which created the tribunals (ITAT, CESTAT, TDSAT, CAT) did not prescribe, as an eligibility criterion for selection of candidates as members, any minimum age. The prescription of 50 years as a minimum eligibility criterion, in the opinion of this 83 court, is without any rationale. The ITAT has existed for the last 79 years; no less than 33 of its members were appointed as judges of various High Courts; one of them (Ranganathan, J.) was appointed to this court. The CESTAT too has comprised advocates who have staffed the tribunal efficiently. The absence of any explanation for the preference given to older persons, in fact leads to an absurd result- as was pointed out in MBA-III (2021) 7 SCC 369 and as has been reiterated by L. Nageswara Rao, J. in his opinion. The Constitution of India makes an advocate who has practiced for more than 10 years, eligible for consideration for appointment as a judge of the High Court and even this Court. An advocate with 7 years’ practice with the Bar can be considered for appointment to the position of a District Judge. Prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates, especially those who might be trained and competent in the particular subject (such as Indirect Taxation, Anti-Dumping, Income-Tax, International Taxation and Telecom Regulation). The exclusion of such eligible candidates in preference to those who are more than 50 years of age is inexplicable and therefore entirely arbitrary. As this Court in its previous judgment (Rojer Mathew (2020) 6 SCC 1) has pointed out in another context, the exclusion of such young and energetic legal practitioners could result in not so efficient or competent practitioners left in a field for consideration which would have telling effects on the quality of decisions they are likely to render.

93. Prescribing 50 years’ minimum age as a condition for appointment to these tribunals is arbitrary also because absolutely no reason is forthcoming about what impelled Parliament to divert from the long-established criteria of giving weightage to actual practice, reputation, integrity and subject expertise, without a minimum age criterion, in the pleadings in this case, nor in any other cases (Madras Bar Assn. (2010) 11 SCC 1 Madras Bar Association 84 (IV) and Roger Mathew (2020) 6 SCC 1). Such being the case, it is astonishing that in the span of a year (i.e. after the decision in Roger Mathew (2020) 6 SCC

1) “new thinking” seems to have prevailed to frame rules excluding advocates who can otherwise, based on their expertise, be considered for appointment to even High Courts.

94. This Court would also observe that the consideration of such younger advocates in the age group of 40-45 years would have long term benefits since the domain knowledge and expertise in such areas (Telecom Regulation, Taxation –both Direct and Indirect, GATT Rules, International Taxation etc.) would be useful in adjudication in these tribunals and lead to a body of jurisprudence. Depending on how such counsel/advocates fare as members of the Tribunal, having regard to their special knowledge of these laws, at a later and appropriate stage, they may even be considered for appointment to High Courts.

95. The age criteria, impugned in this case also leads to wholly anomalous and absurd results. For instance, an advocate with 18 or 20 years’ practise, aged 44 years, with expertise in the field of indirect taxation, telecom, or other regulatory laws, would be conversant with the subject matter. Despite being eligible, (as she or he would fulfil the parameters of at least 10 years’ practice, in the light of the decision in MBA IV) such a candidate would be excluded. On the other hand, an individual who might have practiced law for 10 years, and later served as a private or public sector executive in an entirely unrelated field, but who might be 50 years of age, would be considered eligible, and can possibly secure appointment as a member of a tribunal. Thus, the age criterion would result in filtering out candidates with more relevant experience and qualifications, in preference to those with lesser relevant experience, only on the ground of age.

…

98. Given that the essential educational qualifications and experience in the relevant field are 85 fixed for all candidates, for a classification based on minimum age for appointment (like in the present case) to succeed, the Union cannot say that it should be held to be valid, irrespective of the nature and purposes of the classification or the quality and extent of the difference in experience between candidates. As between someone with 18 years’ experience but aged 42 or 43 years, and someone with only 12 years’ experience, if a system of weightage for experience and qualification were to be applied, the one with greater experience would in all likelihood be selected. Then, to say that one with lesser experience, but who is more aged should be selected and appointed, not only eliminating the one with more experience, but even disqualifying her or him, would mean that better candidates have to be overlooked and those with lesser experience would be appointed, solely on the ground that the latter is over 50 years of age…

99. In the present case, the rule has the effect of excluding deserving candidates, without subserving any discernible public policy or goal. Thus, the classification is based on no justifiable rationale; nor can it be said that the age criterion has some nexus with the object sought to be achieved, such as greater efficiency or experience.

…

103. 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 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” (An expression used in an analogous context, while declaring a cut-off date to be arbitrary,

86 in D.R. Nim v. Union of India AIR 1967 SC 1301) and wholly arbitrary.”

97. Justice Bhat also held that the experience of civil

servants, though broad and diverse, does not necessarily

involve adjudicatory functions. In contrast, advocates,

chartered accountants, and tax officers regularly engage in

legal interpretation and adjudication. Hence, the “status” of

tribunal members cannot be compared rigidly with that of civil

servants, and the argument that service officers reach a

certain rank only around the age of 50 cannot justify a

minimum age requirement or determine equivalence.

98. Justice Bhat rejected the Union’s contention that a

minimum age of 50 years was necessary to maintain parity

between members of the civil services and other eligible

candidates for tribunal appointments. He held that the

proposed equivalence between tribunal members and civil

servants was misplaced, and the argument that such an age

criterion ensured uniformity across services was without merit

and therefore dismissed. It was held:

“107. 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 87 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 of selection, conditions of eligibility, rules for their removal upon proven 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 [State of Maharashtra v. Labour Law Practitioners' Assn., (1998) 2 SCC 688 : 1998 SCC (L&S) 657 : (SCC p. 697, para 18) “18. … 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, at p. 267, para 29 : (2011) 1 SCC (Civ) 106 : (2011) 1 SCC (L&S) 32 the previous decision in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669 : (1962) 2 SCR 339 was quoted :

(Harinagar Sugar Mills case, AIR p. 1680, para 32) “32. … 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 Supp (3) SCC 502 : 1995 SCC (L&S) 105, this Court repelled the contention that members of the Central Administrative Tribunals were government officials,

88 subject to its rules : (SCC p. 508, para 17) “17. … On the contrary, an independent judicial service, the appointment in 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.”]. They are not governed by Article 311 of the 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.

108. 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 professors [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, 2010: “4.0.0 DIRECT RECRUITMENT4.1.0 PROFESSOR A. (i) An eminent scholar with PhD 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 level.(iii) Contribution to educational innovation, design of new curricula and courses, and technology — mediated teaching learning process.(iv) A minimum score as 89 stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III. Or B. An outstanding professional, with established reputation in the relevant field, who has made significant contributions to the knowledge in the concerned/allied/relevant discipline, to be substantiated by credentials.” <https://www.ugc.ac.in/oldpdf/regulations/revised _finalugcregulationfinal10.pdf> visited on 25-6-2021 @ 16 : 18 hours.]. As on date, there are vice- chancellors in some state and national universities who had not completed 45 years at the time of appointment. Such being the position, experience in the field either in the academic, technical or scientific field for a further period of 10 or 12 years or even 15 years would not add up to the minimum threshold of the impugned criteria, i.e. 50 years of age.

109. Purely as empirical data, ITAT has a sanctioned strength of 126 members, (which includes accountant members, technical members – who are drawn from the Indian Revenue Service holding the rank of Commissioner of Appeals, for 3 years, and advocates). 66 members presently are in office, appointed since the year 1999 [<https://itat.gov.in/page/content/members> (last accessed on 21-6-2021).]. Of these, 10 members were below the age of 40 at the time of their appointment; 20 members were between the ages of 40-45, and 15 members were between the ages of 46-50 at the time of their respective appointments. Cumulatively, 44 members out of 66 were appointed below the age of

50. Only 17 members were 50 or above at the time of their appointment. Data is not provided in respect of 5 members. This data as indeed similar data from other tribunals, shows that past appointment to these positions was amongst younger, and competent persons. The Union has not shown why this past history requires departure, and why that longstanding basis for appointing younger professionals, now needs to be departed from, in public interest. Significantly, commissioners of 90 appeals (of income tax) – in the respective service rules, typically are appointed after 18 or so years of service; if one adds 3 years, an incumbent Commissioner could be well below 50 years. She or he would be completely familiar with the adjudicatory process in tax laws. Exclusion of such otherwise qualified and suited personnel, too, is irrational…….”

99. Justice Bhat held that MBA (IV) had conclusively

settled the law, making advocates eligible for appointment to

all tribunals, and this mandate cannot now be ignored or

diluted. The Union of India has, however, failed to take steps

to implement the said direction.

100. Justice Bhat declared that all candidates who are

otherwise qualified and experienced must be considered for

appointment without reference to this age restriction.

Further, to the extent that the 2021 Ordinance sought to

curtail or interfere with the tenure of members appointed

under interim orders, it was also declared invalid, and such

members were held entitled to continue their full term under

the pre-amended law and rules. He held:

“116. …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 preexisting enactments (upto the age of 62 years etc.) is arbitrary. Apart from the fact that the Union wishes to curtail their tenure despite the finality of directions of this court in Roger Mathew 91 (2020) 6 SCC 1 and MBA (IV), 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.”

101. Justice Bhat observed that the large volume of pending

cases before tribunals reflects the significant judicial work they

perform, making it essential that these bodies be staffed with

competent and qualified judicial and technical members.

He emphasized that the Union of India must urgently complete

the appointment process to ensure timely and effective delivery

of justice.

102. Justice Bhat expressed hope that this judgment in

MBA (V), in a line of decisions beginning with MBA (I), would

finally put an end to all issues on the subject. He concluded

that the Court’s intervention should not be seen as opposing

parliamentary or executive wisdom. Instead, each judgment on

tribunals contributes to the constitutional dialogue among the

three branches of governance. He emphasized that the Court

92 intervenes only to uphold citizens’ rights and ensure that

adjudicatory bodies remain independent, competent, and fair.

103. Justice Hemant Gupta dissented from the majority. He

emphasized that judicial directions under Articles 141 and 142

of the Constitution bind courts and authorities, but not the

legislature, which has exclusive competence to enact laws.

He stated 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.” He added that 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”.

104. The jurisprudence on tribunals that has evolved

through this long line of decisions forms the binding

framework within which this Bench must operate. As a Bench

of two Judges, we are constitutionally and judicially bound by

the law declared in the decisions of larger Benches. The

principles laid down by Constitution Benches and three-Judge

Benches must be given full effect. Accordingly, the settled

93 jurisprudence of larger Benches not only informs but compels

the conclusions we reach. It provides the normative standards

against which the Impugned Act must be assessed, and we

remain duty-bound to enforce those standards as part of the

constitutional discipline that governs judicial decision-

making.

V. ATTORNEY GENERAL’S PLEA TO REFER THE ISSUE TO A LARGER BENCH

105. During the course of the hearing on 4th November

2025, the learned Attorney General for India submitted that

the Union of India has filed an application requesting that the

present matter be placed before a larger bench, instead of the

Bench presently seized of it. In principle, there can be no

quarrel with the proposition that this Court may, in an

appropriate case, constitute a larger Bench where issues of

grave or substantial constitutional significance arise.

However, in the present proceedings, the learned Attorney

General has been unable to indicate any cogent or compelling

reason that would justify such a reference at this stage.

106. Article 145(3) of the Constitution mandates the

constitution of a Bench of at least five Judges only where a

94 “substantial question of law as to the interpretation of this

Constitution” is involved. The questions which arise in this

case concerning the constitution, composition, qualifications,

conditions of service and functioning of tribunals have already

been examined in detail by Constitution Benches of this Court

in earlier decisions, including MBA (I) and Rojer Mathew

(supra). Those pronouncements have, in turn, been

consistently applied and elaborated upon in subsequent

decisions in MBA (II), MBA (III), MBA (IV) and MBA (V). The

present case does not present any new or unresolved

constitutional question that would require reconsideration of

those precedents or departure from them. A reference to a

larger Bench would, in these circumstances, serve no

meaningful jurisprudential purpose and would instead result

in avoidable consumption of judicial time.

107. There is an additional consideration of procedural

fairness. The request for reference has been made at a stage

when the hearing before this Bench has progressed

substantially and one side has already been fully heard. A

prayer of this nature ought properly to be raised at an earlier

point in the proceedings so that the Court and the parties may

95 structure their submissions accordingly. Entertaining such a

plea belatedly would risk undermining fairness in the conduct

of the hearing.

108. Finally, we cannot lose sight of the fact that the

controversy before us directly affects the tenure, service

conditions and legitimate expectations of a large number of

individuals presently serving, or aspiring to serve, in tribunals

across the country. More importantly, the persistent vacancies

and uncertainty in the tribunal system have a direct bearing

on access to justice for citizens whose disputes lie within their

jurisdiction. Deferring adjudication, by now embarking on a

reference to a larger Bench, would only prolong this state of

uncertainty, to the detriment of litigants and the

administration of justice.

109. For all these reasons, we are of the considered view

that no case has been made out for a reference under Article

145(3). The application seeking reference to a larger Bench is,

accordingly, rejected.

VI. ANALYSIS OF THE SUBMISSIONS

96

110. The first issue that arises for consideration is whether

Parliament possesses the authority to disregard a judicial

pronouncement and to enact a statute in any manner it deems

appropriate. This contention goes to the core of the present

debate. At its foundation lies an appeal to the doctrine of

parliamentary supremacy, a principle recognised in several

jurisdictions where the legislature is the supreme law-making

body, unconstrained by judicial review. However, the Indian

constitutional framework does not subscribe to parliamentary

sovereignty, nor does it vest unqualified supremacy in the

judiciary. The architecture of our Constitution is firmly rooted

in the principle of constitutional supremacy.

111. In this regard, reference is drawn to in Special

Reference No. 1 of 196431 where Chief Justice

Gajendragadkar, speaking for six Judges of the Court held:

“40. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the 31 1964 SCC OnLine SC 21

97 Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England cannot be claimed by any legislature in India in the literal absolute sense.”

112. Furthermore, in His Holiness Kesavananda Bharati

Sripadagalvaru v. State of Kerala and Another32 in his

opinion, Chief Justice SM Sikri stated that “supremacy of the

Constitution” is one of the features of the basic structure of the

Constitution. Later, in State of Rajasthan and Others v.

Union of India and Others33 Justice Bhagwati (as his

Lordship then was), in his concurring opinion, summarized the

principle as well:

“149. ……It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is Suprema lex, the paramount law of the land, and there is no department or branch of government above or beyond it. Every organ of government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the 32 (1973) 4 SCC 225 33 (1977) 3 SCC 592

98 Constitution or whether its action is within the confines of such power laid down the Constitution…….”

113. This was reiterated in Kalpana Mehta and Others v.

Union of India and Others34 It was held by Chief Justice

Deepak Mishra that:

“20. …The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various articles and sometimes are decipherable from the constitutional silence. Its inherent dynamism makes it organic and, therefore, the concept of ‘constitutional sovereignty’ is sacrosanct. It is extremely sacred and, as stated earlier, the authorities get their powers from the Constitution. It is the source. Sometimes, the constitutional sovereignty is described as the supremacy of the Constitution.

…

23. Thus, the three wings of the State are bound by the doctrine of constitutional sovereignty and all are governed by the framework of the Constitution. The Constitution does not accept transgression of constitutional supremacy and that is how the boundary is set.”

114. In his concurring opinion, Justice Chandrachud (as

his Lordship then was) stated as follows:

“227. …The Constitution does not allow for the existence of absolute power in the institutions which it creates. Judicial review as a part of the basic features of the Constitution is intended to ensure

34 (2018) 7 SCC 1

99 that every institution acts within its bounds and limits…”

115. Thus, under the model of constitutional supremacy,

every organ of the State derives its authority from the

Constitution and remains bound by the limitations it

prescribes. Parliament, though entrusted with wide legislative

powers, must enact laws within the contours of its legislative

competence and in conformity with constitutional rights,

values, and structural principles. The power to assess whether

a law comports with these limitations is expressly vested in

the courts. When the Court interprets the Constitution and

pronounces upon the validity of a statute, that

pronouncement becomes the authoritative and binding

declaration of the law. As has long been recognised, the

Constitution is what the Court says it is, not in the sense of

aggrandising judicial authority, but as a necessary corollary of

the Court’s role as the final arbiter of constitutional meaning.

It would be apt to quote the words of Justice Bhagwati (as his

Lordship then was) in Minerva Mills Ltd. and Others v.

Union of India and Others35 that:

35 (1980) 3 SCC 625

100 “87. …the question arises as to which authority must decide what are the limits on the power conferred upon each organ or instrumentality of the State and whether such limits are transgressed or exceeded …The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent Machinery is the judiciary which is vested with the power of judicial review...”

116. Consequently, once the Court has struck down a

provision or issued binding directions after identifying a

constitutional defect, Parliament cannot simply override or

contradict that judicial decision by reenacting the very same

measure in a different form. What Parliament may legitimately

do is to cure the defect identified by the Court, whether by

altering the underlying conditions, removing the

constitutional infirmity, or restructuring the statutory

framework in a manner consistent with the Court’s reasoning.

A valid legislative response must therefore engage with and

remedy the constitutional violation pointed out by the

judiciary. It cannot merely restate or repackage the invalidated

provision.

117. Parliament, like every other institution under our

constitutional scheme, must operate within the bounds of the

Constitution. Its discretion is broad but not absolute. It must

101 respect the principles of separation of powers, the guarantees

of fundamental rights, and the structural values (such as

judicial independence) that are part of the basic framework of

our constitutional order.

118. Where a legislative measure attempts to nullify or

circumvent a binding constitutional judgment without curing

the underlying defect, it not only exceeds Parliament’s

authority but also violates the doctrine of constitutional

supremacy itself. This has been aptly discussed in the decision

in NHPC LTD. v. State of Himachal Pradesh Secretary and

Others36 The case arose out of a long-standing dispute

concerning the imposition of water cess/royalty by the State

of Himachal Pradesh on hydroelectric projects operated by

NHPC (a Central Government undertaking). Earlier, certain

notifications issued by the State were set aside by the

Himachal Pradesh High Court, holding that the State lacked

legislative competence under the Constitution to levy such

cess on hydroelectric projects which were under the control of

the Union Government. In response, the State legislature

enacted the Himachal Pradesh Water Cess on Hydro Power

36 2023 INSC 810

102 Generation Act, 2023, which purported to retrospectively

validate the earlier imposts and revive the collections that had

been invalidated by the court’s judgment. NHPC challenged

this new legislation before the Supreme Court, contending that

it amounted to a legislative overruling of a judicial decision

and violated the doctrine of separation of powers.

The Court held:

“11. What follows from the aforesaid judicial precedent is, a legislature cannot directly set aside a judicial decision. However, when a competent legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the same is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such a legislative device which removes the vice in the previous legislation which has been declared unconstitutional is not considered to be an encroachment on judicial power but an instance of abrogation recognised under the Constitution of India. The decisions referred to above, manifestly show that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the Court to arrive at the same verdict. In other words, the very premise of the earlier judgment should be removed, thereby resulting in a fundamental change of the circumstances upon which it was founded.

12. The power of a legislature to legislate within its field, both prospectively and to a permissible extent, retrospectively, cannot be interfered with by Courts provided it is in accordance with the Constitution. It would be permissible for the legislature to remove a defect in an earlier legislation, as pointed out by a

103 constitutional court in exercise of its powers by way of judicial review. This defect can be removed both prospectively and retrospectively by a legislative process and previous actions can also be validated.

However, where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra-vires. Such instances would amount to an attempt to ‘legislatively overrule’ a Court’s judgment by a legislative fiat, and would therefore be illegal and a colourable legislation.

13. …..The role of the judiciary in galvanising our constitutional machinery characterised by institutional checks and balances, lies in recognising that while due deference must be shown to the powers and actions of the other two branches of the government, the power of judicial review may be exercised to restrain unconstitutional and arbitrary exercise of power by the legislature and executive organs. The power of judicial review is a part of the basic feature of our Constitution which is premised on the rule of law. Unless a judgment has been set aside by a competent court in an appropriate proceeding, finality and binding nature of a judgment are essential facets of the rule of law informing the power of judicial review. In that context, we observe that while it may be open to the legislature to alter the law retrospectively, so as to remove the basis of a judgment declaring such law to be invalid, it is essential that the alteration is made only so as to bring the law in line with the decision of the Court.…..Simply setting at naught a decision of a court without removing the defects pointed out in the said decision, would sound the death knell for the rule of law. The rule of law would cease to have any meaning if the legislature is at liberty to defy a judgment of a court by simply passing a validating legislation, without removing the defects forming the substratum of the 104 judgment by use of a non-obstante clause as a technique to do so.

14.The legislative device of abrogation by enacting retrospective amendments to a legislation, as a means to remove the basis of a judgment and validate the legislation set aside or declared inoperative by a Court, must be employed only with a view to bring the law in line with the judicial pronouncement. Abrogation is not a device to circumvent any and all unfavourable judicial decisions. If enacted solely with the intention to defy judicial pronouncement, such an amendment Act may be declared to be ultra-vires and as a piece of ‘colourable legislation.’ The device of abrogation, by way of introducing retrospective amendments to remove the basis of a judgment, may be employed when a legislature is under the bonafide belief that a defect that crept into the legislation as it initially stood, may be remedied by abrogation An act of abrogation is permissible only in the interests of justice, effectiveness and good governance, and not to serve the oblique agenda of defying a court’s order, or stripping it of its binding nature

15. The Constitution of India precludes any interference by the legislature with the administration of justice and judicial determination of the validity of a legislation. The power of abrogation is to be exercised in the light of the said Constitutional mandate. The legislative device of abrogation must be in accordance with the following principles which are not exhaustive:

(i) There is no legal impediment to enacting a law to validate a legislation which has been held by a court to be invalid, provided, such a law removes the basis of the judgment of the court, by curing the defects of the legislation as it stood before the amendment.

(ii) The validating legislation may be retrospective. It must have the effect that the judgment pointing out the defect 105 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.

(iii) Retrospective amendment should be reasonable and not arbitrary and must not be violative of any Constitutional limitations.

(iv) Setting at naught a decision of a court without removing the defect pointed out in the said decision is opposed to the rule of law and the scheme of separation of powers under the Constitution of India.

(v) Abrogation is not a device to circumvent an unfavourable judicial decision. If enacted solely with the intention to defy a judicial pronouncement, an Amendment and Validation Act of 1997 may be declared as ultra-vires.” [Emphasis supplied]

119. In a judgment of this Court in the case of Dr. Jaya

Thakur v. Union of India and Others37 (to which one of us

Gavai, J. as he then was a party) this Court held that a writ of

mandamus could not be nullified by a subsequent legislation

made by the legislator. That a binding judicial pronouncement

between the parties cannot be made ineffective with the aid of

any legislative power by enacting a provision which in

37 2023 SCC OnLine SC 813

106 substance simply overrules a judgment unless the foundation

of the judgment is removed. Referring to several judgments of

this Court, the following principles as to the manner in which

the device of abrogation could be employed, were identified as

under:

“114. It could, thus, clearly be seen that this Court has held that the effect of the judgments of this Court can nullified by a legislative act removing the basis of the judgment. It has further been held that such law can be retrospective. It has, however, been held that retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. It has been held that the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. This Court has, however, clearly held that nullification of mandamus by an enactment would be impermissible legislative exercise. This Court has further held that 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.”

120. Therefore, we do not find merit in the argument of the

learned Attorney General that Parliament has discretion to

ignore the decisions of this Court.

121. The second central contention advanced by the Union

is that the Court cannot compel Parliament to legislate in a

particular manner. This principle is undoubtedly correct.

107 This Court has repeatedly acknowledged the institutional

limits of judicial power and has cautioned against intruding

into the prerogative of the legislature by dictating the precise

contents of a statute. The constitutional scheme does not

permit the judiciary to prescribe the text of a law or to mandate

that Parliament adopt a specific policy choice.

122. However, this proposition does not carry the matter

very far. While the Court cannot require Parliament to enact a

law in a particular form, it unquestionably retains the

authority, and indeed the constitutional obligation, to examine

the validity of any law that Parliament enacts. Judicial review

is a basic feature of the Constitution. If a legislative measure

infringes fundamental rights, violates structural principles

such as separation of powers or judicial independence,

exceeds legislative competence, or frustrates binding

constitutional directions, the Court may strike it down. The

inability to compel Parliament to legislate in a specific manner

does not translate into an obligation to blindly accept any law

that Parliament enacts.

123. Thus, a clear distinction must be maintained between

directing legislation and reviewing legislation. The former is

108 forbidden, because the Court cannot function as a law-maker.

The latter is indispensable to preserving the supremacy of the

Constitution. Where the Court identifies constitutional

infirmities and issues mandatory directions to ensure

compliance with constitutional principles, such as those

concerning the independence, composition, or tenure of

adjudicatory bodies, those directions are binding. Parliament

may respond by removing the basis of the judgment through

curative legislation, but it cannot simply enact a statute that

reproduces or perpetuates the very defects the Court has

critiqued. Thus, while the judiciary cannot dictate policy, it

can and must ensure that legislative choices conform to the

Constitution. Judicial restraint in law-making does not imply

judicial abdication in constitutional adjudication.

124. The next submission is that the constitutionality of

legislation cannot be tested on the touchstone of what the

Union describes as “abstract principles,” such as separation

of powers or judicial independence. This argument, however,

has already been examined in depth, particularly in the

concurring opinion of Justice Ravindra Bhat in MBA (V), and

has been categorically rejected. As this Court has repeatedly

109 clarified, the principles of separation of powers and judicial

independence are not vague, free-floating ideals. They are

structural pillars of our constitutional order and integral

components of constitutionalism worldwide.

125. Far from being abstract, these principles are firmly

embedded in the text, scheme, and spirit of the Constitution.

Judicial independence is inseparable from the guarantee of

judicial review, and judicial review itself is the mechanism that

ensures that all State action (legislative, executive, or judicial)

conforms to the Constitution. Similarly, the doctrine of

separation of powers is not merely philosophical. It

underwrites the very distribution of authority among the three

branches of government. It is reflected in Articles 32, 136, 141,

226, and 227 of the Constitution, which vest the judiciary with

the power to interpret the law, enforce fundamental rights, and

supervise subordinate courts and tribunals. It is also

embedded in provisions relating to appointment, tenure, and

removal of judges, all of which insulate the courts from

executive dominance.

126. Legislative measures concerning the structure,

composition, and functioning of tribunals necessarily

110 implicate these constitutional principles because tribunals

discharge judicial functions and form part of the larger system

of justice administration. When Parliament designs or alters

the tribunal system, it must do so in a manner consistent with

the constitutional requirements of independence, impartiality,

and effective adjudication. A law that undermines these

foundational values, such as by enabling executive control

over appointments, curtailing tenure arbitrarily, or weakening

institutional autonomy, does not merely offend an “abstract

principle”. It strikes at the core of the constitutional

arrangement.

127. Furthermore, through the long line of decisions from

Sampath Kumar (supra) to MBA (V), this Court has

consistently interpreted Articles 323-A and 323-B in a manner

that firmly anchors the principles of separation of powers and

judicial independence within the constitutional framework

governing tribunals. These structural principles are not

external additions but flow directly from the constitutional

scheme embodied in these articles, which permit the creation

of adjudicatory bodies exercising judicial power. Because

tribunals perform functions that were traditionally within the

111 domain of courts, the standards applicable to judicial

institutions necessarily inform the conditions of their

appointments, qualifications, tenure, and service conditions.

Over time, therefore, this Court’s jurisprudence has evolved a

set of constitutional benchmarks, guiding norms that define

what an independent and effective tribunal must look like.

These benchmarks constitute the operative test for evaluating

the constitutional validity of laws pertaining to tribunals.

128. Therefore, when this Court scrutinises legislation

affecting tribunals through the lens of separation of powers,

judicial independence, and Article 14, it is not invoking

amorphous notions but enforcing strict constitutional

mandates. These structural principles provide the normative

boundaries within which Parliament must legislate. To treat

them as abstract or unenforceable would be to ignore decades

of constitutional jurisprudence and to hollow out the very

safeguards that ensure the rule of law.

129. The Court’s interpretative authority to expand upon

and define the scope of constitutional provisions is neither

novel nor exceptional. It has consistently exercised this

function in diverse contexts. For instance, by broadening the

112 ambit of fundamental rights under Articles 19 and 21, and by

elaborating the process of judicial appointments under

Articles 124 and 217. Once the Court interprets the content

and purpose of a constitutional provision, that interpretation

becomes binding and normative upon all branches of

government, including the legislature and the executive.

130. Another example is M. Nagaraj and Others v. Union

of India and Others38, where the Court upheld the

constitutional amendments enabling reservation in

promotions but simultaneously laid down mandatory

preconditions, such as the collection of quantifiable data on

backwardness, inadequacy of representation, and

administrative efficiency, without which any implementing

legislation would be unconstitutional. This was not treated as

judicial legislation but as a constitutional framework within

which Parliament and the States were required to operate. In

the years that followed, various statutes and executive actions

providing for reservation in promotions were invalidated

because they failed to satisfy the Nagaraj (supra)

requirements. The constitutional principles articulated by the

38 (2006) 8 SCC 212

113 Court became the standard against which legislative validity

was tested.

131. Similarly, the right to privacy upheld in K.S.

Puttaswamy and Another v. Union of India and Others39

is not expressly stated in any single constitutional provision.

Yet the Court traced its existence to the penumbra of various

guarantees, Articles 19, 21, and 25, and to the broader

constitutional commitment to dignity, autonomy, and liberty.

Once articulated, the privacy framework became a guiding

doctrine for assessing the validity of a wide range of laws and

State actions, including those relating to personal autonomy.

132. In the same way, the norms laid down in the tribunal

cases, regarding tenure, age limits, selection processes,

qualifications, and independence from executive control, are

not abstract judicial preferences. They are constitutional

requirements distilled from Articles 323-A and 323-B read

with the doctrines of separation of powers, independence of

the judiciary, and the guarantee of equality under Article 14.

These principles therefore furnish the constitutional tests that

any legislation on tribunals must satisfy. Where Parliament

39 (2017) 10 SCC 1

114 re-enacts provisions previously struck down without curing

the underlying defect, the resulting legislation remains

vulnerable to invalidation, not because the Court is imposing

its own policy, but because the Constitution itself demands

adherence to these structural safeguards.

133. When the Court examines the validity of a statutory

provision governing tribunals, it does not issue legislative

directions in the strict sense. Instead, it tests the law against

these constitutionally entrenched standards. In doing so, the

Court reinforces the idea that the tribunal system derives its

constitutional legitimacy from adherence to the same

principles that safeguard judicial independence and the rule

of law.

134. Seen in this light, the Union’s argument does not

stand. The validity of legislation may, and must, be tested

against structural principles such as separation of powers and

judicial independence when the legislation in question directly

implicates the constitutional design of the justice system.

Judicial enforcement of these principles is an essential feature

of constitutional adjudication, not an overreach.

115 VII. THE VALIDITY OF THE IMPUGNED ACT

135. We shall now consider whether the Impugned Act

merely repackages what was struck down in MBA (V), without

curing its defects. On a comparison of the provisions of the

2021 Ordinance with the Impugned Act, it is found that

several provisions are verbatim repeated. The following table

captures this:

Tribunal Reforms Ordinance Tribunal Reforms Act 2021 2021

Chapter XI Chapter II Section 12: In the Finance Act, Section 3:

2017 (hereinafter referred to as (1) … Provided that a person the Finance Act),–– who has not completed the age

(i) for section 184, the following of section shall be substituted, namely:— fifty years shall not be eligible for “184. (1) … Provided that a person appointment as a Chairperson or who has not completed the age of Member.

fifty years shall not be eligible for appointment as a Chairperson or Member:

184 (2) The Chairperson and 3 (2) The Chairperson and the Members of a Tribunal shall be Member of a Tribunal shall be appointed by the Central appointed by the Central

116 Government on the Government on the recommendation of a Search- recommendation of a Search-

cum-Selection Committee cum-Selection Committee (hereinafter referred to as the constituted under sub-section Committee) constituted under (3), in such manner as the sub-section (3), in such manner Central Government may, by as the Central Government rules, provide. may, by rules, provide.

184 (3) The Search-cum- 3 (3) The Search-cum-Selection Selection Committee shall Committee, except for the State consist of— (a) the Chief Justice Administrative Tribunal, shall of India or a Judge of Supreme consist of— (a) a Chairperson, Court nominated by him–– who shall be the Chief Justice Chairperson of the Committee; of India or a Judge of Supreme

(b) two Secretaries nominated Court nominated by him; (b) by the Government of India –– two Members, who are Members; (c) one Member, who– Secretaries to the Government – (i) in case of appointment of a of India to be nominated by that Chairperson of a Tribunal, shall Government; (c) one Member, be the outgoing Chairperson of who — (i) in case of the Tribunal; or (ii) in case of appointment of a Chairperson appointment of a Member of a of a Tribunal, shall be the Tribunal, shall be the sitting outgoing Chairperson of that Chairperson of the Tribunal; or Tribunal; or (ii) in case of

(iii) in case of the Chairperson appointment of a Member of a of the Tribunal seeking re- Tribunal, shall be the sitting appointment, shall be a retired Chairperson of that Tribunal; or Judge of the Supreme Court or (iii) in case of the Chairperson a retired Chief Justice of a High of the Tribunal seeking re- Court nominated by the Chief appointment, shall be a retired Justice of India: Provided that, Judge of the Supreme Court or in the following cases, such a retired Chief Justice of a High Member shall always be a Court, to be nominated by the retired Judge of the Supreme Chief Justice of India: Provided Court or a retired Chief Justice that in the following cases, such of a High Court nominated by Member shall always be a the Chief Justice of India, retired Judge of the Supreme namely:–– (i) Industrial Court or a retired Chief Justice Tribunal constituted by the of a High Court, to be Central Government under the nominated by the Chief Justice

117 Industrial Disputes Act, 1947; of India, namely:— (i) Industrial

(ii) Tribunals and Appellate Tribunal constituted by the Tribunals constituted under Central Government under the the Recovery of Debts Due to Industrial Disputes Act, 1947 Banks and Financial (14 of 1947); (ii) Debt Recovery Institutions Act, 1993; (iii) Tribunal and Debt Recovery Tribunals where the Appellate Tribunal established Chairperson or the outgoing under the Recovery of Debts Chairperson, as the case may and Bankruptcy Act, 1993 (51 be, of the Tribunal is not a of 1993); (iii) where the retired Judge of the Supreme Chairperson or the outgoing Court or a retired Chief Justice Chairperson, as the case may or Judge of a High Court; and be, of a Tribunal is not a retired

(iv) such other Tribunals as Judge of the Supreme Court or may be notified by the Central a retired Chief Justice or Judge Government in consultation of a High Court; and (iv) such with the Chairperson of the other Tribunals as may be Search-cum-Selection notified by the Central Committee of that Tribunal; Government, in consultation and (d) the Secretary to the with the Chairperson of the Government of India in the Search-cum Selection Ministry or Department under Committee of that Tribunal;

which the Tribunal is and (d) the Secretary to the constituted or established –– Government of India in the MemberSecretary. Ministry or Department under which the Tribunal is constituted or established— Member-Secretary: Provided that the Search-cum-Selection Committee for a State Administrative Tribunal shall consist of— (a) the Chief Justice of the High Court of the concerned State—Chairman;

(b) the Chief Secretary of the concerned State Government— Member; (c) the Chairman of the Public Service Commission of the concerned State— Member; (d) one Member, who— (i) in case of appointment

118 of a Chairman of the Tribunal, shall be the outgoing Chairman of the Tribunal; or (ii) in case of appointment of a Member of the Tribunal, shall be the sitting Chairman of the Tribunal; or

(iii) in case of the Chairman of the Tribunal seeking re-

appointment, shall be a retired Judge of a High Court nominated by the Chief Justice of the High Court of the concerned State: Provided that such Member shall always be a retired Judge of a High Court nominated by the Chief Justice of the High Court of the concerned State, if the Chairperson or the outgoing Chairperson of the State Administrative Tribunal, as the case may be, is not a retired Chief Justice or Judge of a High Court; (e) the Secretary or the Principal Secretary of the General Administrative Department of the concerned State—Member-Secretary.

184 (4) The Chairperson of the 3 (4) The Chairperson of the Committee shall have the Search-cum-Selection casting vote. Committee shall have the casting vote.

184 (5) The Member-Secretary 3 (5) The Member-Secretary of of the Committee shall not have the Search-cum-Selection any vote. Committee shall not have any vote.

184 (6) The Committee shall 3 (6) The Search-cum-Selection determine its procedure for Committee shall determine the

119 making its recommendations. procedure for making its recommendations.

184 (7) Notwithstanding 3 (7) Notwithstanding anything anything contained in any contained in any judgment, judgment, order or decree of order or decree of any court, or any court or in any law for the in any law for the time being in time being in force, the force, the Search-cum- Committee shall recommend a Selection Committee shall panel of two names for recommend a panel of two appointment to the post of names for appointment to the Chairperson or Member, as the post of Chairperson or Member, case may be, and the Central as the case may be, and the Government shall take a Central Government shall take decision on the a decision on the recommendations of the recommendations made by that Committee preferably within Committee, preferably within three months from the date on three months from the date of which the Committee makes its such recommendation.

recommendations to the Government.

184 (8) No appointment shall be 3 (8) No appointment shall be invalid merely by reason of any invalid merely by reason of any vacancy or absence in the vacancy or absence of a Committee. Member in the Search-cum-

Selection Committee.

184 (9) The Chairperson and 6. Eligibility for re- Member of a Tribunal shall be appointment.—(1) The eligible for re-appointment in Chairperson and Member of a accordance with the provisions Tribunal shall be eligible for re- of this section: appointment in accordance with the provisions of this Act:

Provided that in making such re-appointment, preference Provided that, in making such shall be given to the service re-appointment, preference rendered by such person. shall be given to the service rendered by such person.

184 (10) The Central 4. Removal of Chairperson or

120 Government shall, on the Member of Tribunal.—The recommendation of the Central Government shall, on Committee, remove from office, the recommendation of the in such manner as may be Committee, remove from office, provided by rules, any Member, in such manner as may be who— (a) has been adjudged as provided by rules, any an insolvent; or (b) has been Chairperson or a Member, convicted of an offence which who— (a) has been adjudged as involves moral turpitude; or (c) an insolvent; or (b) has been has become physically or convicted of an offence which mentally incapable of acting as involves moral turpitude; or (c) such a Member; or (d) has has become physically or acquired such financial or other mentally incapable of acting as interest as is likely to affect such Chairperson or Member;

prejudicially his functions as a or (d) has acquired such Member; or (e) has so abused financial or other interest as is his position as to render his likely to affect prejudicially his continuance in office functions as such Chairperson prejudicial to the public or Member; or (e) has so abused interest: Provided that where a his position as to render his Member is proposed to be continuance in office removed on any ground prejudicial to the public specified in clauses (b) to (e), he interest:

shall be informed of the charges against him and given an opportunity of being heard in Note: The Explanation respect of those charges. Clauses mentioned in the Ordinance have been removed from the Act.

184 (11) Notwithstanding 5. Term of office of Chairperson anything contained in any and Member of Tribunal.— judgment, order, or decree of Notwithstanding anything any court or any law for the contained in any judgment, time being in force, –– (i) the order or decree of any court, or Chairperson of a Tribunal shall in any law for the time being in hold office for a term of four force,— (i) the Chairperson of a years or till he attains the age of Tribunal shall hold office for a seventy years, whichever is term of four years or till he earlier; (ii) the Member of a attains the age of seventy years, Tribunal shall hold office for a whichever is earlier; (ii) the

121 term of four years or till he Member of a Tribunal shall hold attains the age of sixtyseven office for a term of four years or years, whichever is earlier: till he attains the age of sixty-

Provided that where a seven years, whichever is Chairperson or Member is earlier: Provided that where a appointed between the 26th day Chairperson or Member is of May, 2017 and the notified appointed between the 26th day date and the term of his office of May, 2017 and the notified or the age of retirement date, and the term of his office specified in the order of or the age of retirement appointment issued by the specified in the order of Central Government is greater appointment issued by the than that which is specified in Central Government is greater this section, then, than that which is specified in notwithstanding anything this section, then, contained in this section, the notwithstanding anything term of office or age of contained in this section, the retirement or both, as the case term of office or age of may be, of the Chairperson or retirement or both, as the case Member shall be as specified in may be, of the Chairperson or his order of appointment Member shall be as specified in subject to a maximum term of his order of appointment, office of five years.” subject to a maximum term of office of five years.

13 “(2) Subject to the provisions 7 (2) Neither the salary and of sections 184 and 185, allowances nor the other terms neither the salary and and conditions of service of the allowances nor the other terms Chairperson or Member of the and conditions of service of Tribunal may be varied to his Chairperson, Vice Chairperson, disadvantage after his Chairman, Vice-Chairman, appointment.

President, VicePresident, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.”.

184. (1) The Central 7. (1) Salary and allowances.—

122 Government may, by (1) Notwithstanding anything notification, make rules to contained in any judgment, provide for the qualifications, order or decree of any court, or appointment, salaries and in any law for the time being in allowances, resignation, force, and without prejudice to removal and the other the generality of the foregoing conditions of service of the power, the Central Government Chairperson and Members of may make rules to provide for the Tribunal as specified in the the salary of the Chairperson Eighth Schedule: and Member of a Tribunal and they shall be paid allowances Provided further that the and benefits to the extent as are allowances and benefits so admissible to a Central payable shall be to the extent as Government officer holding the are admissible to a Central post carrying the same pay:

Government officer holding the post carrying the same pay: Provided that, if the Chairperson or Member takes a Provided also that where the house on rent, he may be Chairperson or Member takes a reimbursed a house rent higher house on rent, he may be than the house rent allowance reimbursed a house rent as are admissible to a Central subject to such limits and Government officer holding the conditions as may be provided post carrying the same pay, by rules.

subject to such limitations and conditions as may be provided by rules.

136. Furthermore, across the Copyright Act, Customs Act,

Patents Act, and Airports Authority of India Act, the paired

provisions reproduced in the Impugned Act are substantively

identical to those found in the earlier Ordinance. Each set

abolishes existing tribunal or appellate structures, such as the

Appellate Board, Appellate Authority, or other specialised

tribunals, and transfers their jurisdiction to High Courts or

123 Commercial Courts. The wording, structure, and legal effect

remain the same in both versions, with only minor formatting

or clarificatory differences. In essence, the Impugned Act

simply carries forward, almost verbatim, the amendments

earlier introduced through the 2021 Ordinance, reaffirming

the same statutory shift from tribunal-based adjudication to

court-based adjudication.

137. Similarly, the amendments made through the 2021

Ordinance to the Trade Marks Act, 1999, the Geographical

Indications of Goods (Registration and Protection) Act, 1999, the

Protection of Plant Varieties and Farmers’ Rights Act, 2001, and

the Control of National Highways (Land and Traffic) Act, 2002

are retained in full within the Impugned Act. These provisions

continue the same policy direction, removing specialised

tribunals and reallocating their functions to High Courts or

other judicial bodies, without introducing any substantive

changes from the 2021 Ordinance.

138. Further, the Impugned Actextends this pattern by

amending several additional statutes. The Smugglers and

Foreign Exchange Manipulators (Forfeiture of Property) Act,

1976, the Administrative Tribunals Act, 1985, the Railway

124 Claims Tribunal Act, 1987, the Securities and Exchange Board

of India Act, 1992, the Recovery of Debts and Bankruptcy Act,

1993, and the Telecom Regulatory Authority of India Act, 1997

are all modified in the same manner. In each of these statutes,

the Act replaces references to the earlier framework under Part

XIV of Chapter VI of the Finance Act, 2017 with references to

the Impugned Act, specifying that the appointment, tenure,

and service conditions of tribunal members will now be

governed by Chapter II of the new Act.

139. Thus, it can be seen that what the 2021 Ordinance did

through amendments to Section 184 of the Finance Act, 2017,

the Impugned Act now does through Sections 3, 5, and 7. The

minimum age bar of fifty years for all appointments, the

truncated four-year tenure with upper age caps of 70/67, the

requirement that the Search-cum-Selection Committee

forward a panel of two names for each vacancy, and the fixing

of allowances and benefits to those of equivalent civil servants

are all provisions, which have already been judicially tested

and struck down. The Court has expressly held that these

measures are arbitrary, destructive of judicial independence,

125 and amount to an impermissible legislative override of binding

directions.

140. Merely shifting the same content from the amended

Section 184 of the Finance Act into Sections 3, 5 and 7 of a

stand-alone statute, while using the non obstante formula

“notwithstanding anything contained in any judgment or

order”, does not cure the constitutional defects. It simply re-

enacts them in another avatar. The Impugned Act, therefore,

does not “cure” the law declared earlier, but consciously defies

it.

141. Equally, the learned Attorney General’s present

defence of the Impugned Act is a verbatim reprise of

arguments that have already been considered and rejected. In

the earlier round, the Union had contended that directions

regarding age, tenure, HRA and the recommendation of a

single name were mere “suggestions”, that Parliament is free

to depart from them in exercise of its policy-making power,

and that judicial review must be confined to testing explicit

textual violations of the Constitution. The decision in MBA (V)

rejected this argument on multiple grounds. First, it held that

the directions on composition, tenure and conditions of service

126 were in the nature of mandamus flowing from adjudication on

separation of powers, independence of the judiciary and

Article 14, and therefore constitute “law declared” under

Article 141. Second, it held that while the legislature may

neutralise a judgment by curing the underlying defect, it

cannot simply re-enact the very provision or rule that was

struck down and declare the Court’s view to be non-binding.

Such repetition was described as an “impermissible legislative

override” and an “indirect intrusion into the judicial sphere”.

Third, it emphasised that separation of powers and judicial

independence are justiciable constitutional principles, and

that in matters affecting the structure and functioning of

adjudicatory bodies, the Court must apply a searching

standard of review and cannot defer to “policy” in the same

way as in economic or commercial regulation.

The Impugned Act thus stands on two identical, already-

rejected premises: it reproduces the substance of provisions

invalidated in the earlier litigations without curing the defects,

and it rests on constitutional arguments that the Court has

already expressly disapproved.

127

142. Therefore, the provisions of the Impugned Act cannot

be sustained. They violate the constitutional principles of

separation of powers and judicial independence, which are

firmly embedded in the text, structure, and spirit of the

Constitution. The Impugned Act directly contradicts binding

judicial pronouncements that have repeatedly clarified the

standards governing the appointment, tenure, and functioning

of tribunal members. Instead of curing the defects identified

by this Court, the Impugned Act merely reproduces, in slightly

altered form, the very provisions earlier struck down.

This amounts to a legislative override in the strictest sense: an

attempt to nullify binding judicial directions without

addressing the underlying constitutional infirmities. Such an

approach is impermissible under our constitutional scheme.

Because the Impugned Act fails to remove the defects

identified in prior judgments and instead reenacts them under

a new label, it falls afoul of the doctrine of constitutional

supremacy. Accordingly, the impugned provisions are struck

down as unconstitutional.

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VIII. PROTECTION EXTENDED

143. We also clarify that in MBA (IV) and MBA (V), the

learned Attorney General for India had expressly submitted

before this Court that the appointments of Members and

Chairpersons made prior to the enactment of the impugned

framework would stand protected. Although no such

assurance has been offered in the present proceedings, the

underlying principle remains the same. Stability of tenure and

protection of vested rights are essential components of judicial

independence, and the Court’s earlier directions on this

subject cannot be lightly departed from.

144. It will be relevant to note that in the case of Kudrat

Sandhu (supra), while dealing with the aspect as to whether

an interim order be passed in respect of the Members of the

Central Administrative Tribunal, this Court vide order dated

9th February 2018 recorded the statement of the then learned

Attorney General for India appearing in the said matter, which

reads thus:

“… Mr. Venugopal, learned Attorney General has submitted that he has no objection if the suggestions, barring suggestion nos.4 and 5, are presently followed as an interim measure. On a query being

129 made whether the said suggestions shall be made applicable to all tribunals, learned Attorney General answered in the affirmative.

He would, however, suggest that suggestions nos.4 and 5 should be recast as follows:

4. All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Acts and the Rules.

5. A further direction to the effect that all the selections made by the aforementioned interim selection committee and the consequential appointment of all the selectees as Chairman/Judicial/Administrative members shall be for a period as has been provided in the old Acts and the Rules.

In view of the aforesaid, we accept the suggestions and direct that the same shall be made applicable for selection of the Chairpersons and the Judicial/Administrative/Technical/Expert Members for all tribunals.

…”

145. Subsequently, vide order dated 16th July 2018, while

dealing with the age of superannuation of the ITAT Members,

this Court observed thus:

“… At this juncture, we may note that there is some confusion with regard to the Income Tax Appellate Tribunal (ITAT) as regards the age of superannuation. We make it clear that the person selected as Member of the ITAT will continue till the age of 62 years and the person holding the post of President, shall continue till the age of 65 years. …” 130

146. Thereafter, vide order dated 21st August 2018, while

dealing with the age of superannuation of the CESTAT

Members, this Court observed thus:

“2. …We, accordingly, are of the view that the clarification issued for the ITAT in the order dated 20 March 2018 needs to be reiterated in the case of the members of the CESTAT, which we do. We clarify that a person selected as Member of the CESTAT will continue until the age of 62 years while a person holding the post of President shall continue until the age of 65 years.”

147. It is not in dispute that in respect of some of the

Members of the ITAT, the recommendations were made by the

SCSC on 21st September 2019. The same was put up before

the Appointment Committee of the Cabinet40 on 16th October

2019. In the meantime, the judgment in the case of Rojer

Mathew (supra) was delivered by this Court on 13th November

2019. As such, appointments of all persons whose

recommendations were made on 21st September 2019 and

whose names were approved by the ACC ought to have been

made immediately after the judgment in the case of Rojer

Mathew (supra) was delivered. This would have been

consistent with the statement made by the then learned

40 Hereinafter, “ACC”.

131 Attorney General on 9th February 2018. However, for the

reasons best known to the Union of India, the appointment

orders were issued only on 11th September 2021 and

1st October 2021. According to the appointment order, the said

appointments, including their tenure, are in terms of the new

provisions. We are, therefore, of the considered view that the

said appointments by the Central Government are totally

inconsistent with the statement made by the learned Attorney

General on 9th February 2018.

148. We are giving these details with regard to ITAT

Members only as an example. There may be such cases in

respect of other Tribunals also.

IX. CONCLUSION

“The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.” — Dr. B.R. Ambedkar in Constituent Assembly (4 November 1948)

149. The foresighted constitutional vision of Dr. Ambedkar is

strikingly evident in the present series of litigations concerning

the tribunal system. The repeated reenactment of the same 132 provisions, which have been struck down by the judiciary,

shows that the “form of the administration” is being made

“inconsistent” with the spirit of the Constitution, as

Dr. Ambedkar had highlighted. The issues raised in the

present petitions are not new to constitutional adjudication.

They have engaged the attention of this Court on several

earlier occasions, spanning more than three decades. We must

express our disapproval of the manner in which the Union of

India has repeatedly chosen to not accept the directions of this

Court on the very issues that have already been conclusively

settled through a series of judgments. It is indeed unfortunate

that instead of giving effect to the well-established principles

laid down by this Court on the question of the independence

and functioning of tribunals, the legislature has chosen to re-

enact or re-introduce provisions that reopen the same

constitutional debates under different enactments and rules.

150. In a judicial system already burdened with a staggering

pendency across the Supreme Court, High Courts, and district

courts, the continued recurrence of such issues consumes

valuable judicial time that could otherwise be devoted to

adjudicating matters of pressing public and constitutional

133 importance. The responsibility of reducing pendency in courts

does not rest only on the judiciary. It is a shared institutional

duty. While the judiciary must strive to enhance efficiency in

case management and decision-making, the other branches of

government must exercise their legislative and executive

powers with due regard to constitutional principles and

judicial precedent. Respect for settled law is as essential to

good governance as it is to judicial discipline. It ensures that

institutional time is spent in advancing justice rather than

revisiting questions long resolved.

151. We direct that unless the constitutional concerns

repeatedly highlighted by this Court in the series of tribunal-

related judgments are fully addressed and cured, and unless

Parliament enacts an appropriate legislation that faithfully

gives effect to those principles, the principles and directions

laid down in MBA (IV) and MBA (V) shall continue to govern

all matters relating to the appointment, qualifications, tenure,

service conditions, and allied aspects concerning tribunal

members and chairpersons. These judgments represent the

binding constitutional standards necessary to preserve

judicial independence and to ensure that tribunals function

134 as effective and impartial adjudicatory bodies. Accordingly,

they shall operate as the controlling framework.

152. As consistently directed in the earlier judgments of this

Court, the executive bears a constitutional obligation to

establish a National Tribunals Commission in accordance with

the principles and framework articulated therein. The creation

of such a commission is an essential structural safeguard

designed to ensure independence, transparency, and

uniformity in the appointment, administration, and

functioning of tribunals across the country. The repeated

judicial insistence on this body reflects the Court’s recognition

that piecemeal reforms cannot remedy the systemic

deficiencies that have persisted for decades.

153. We grant the Union of India a period of four months

from the date of this judgment to establish a National

Tribunals Commission. The commission so constituted must

adhere to the principles articulated by this Court, particularly

concerning independence from executive control, professional

expertise, transparent processes, and oversight mechanisms

that reinforce public confidence in the system.

135

154. We, further, clarify and direct that the service

conditions of all such Members of ITAT who were appointed by

orders dated 11th September 2021 and 1st October 2021 shall

be governed by the old Act and the old Rules.

155. We also clarify that all appointments of Members and

Chairpersons whose selection or recommendation by the

Search-cum-Selection Committee was completed before the

commencement of the Tribunal Reforms Act, 2021, but whose

formal appointment notifications were issued after the Act

came into force, shall be protected. Such appointments will

continue to be governed by the parent statutes and by the

conditions of service as laid down in MBA (IV) and MBA (V),

rather than by the truncated tenure and altered service

conditions introduced by the Tribunal Reforms Act, 2021.

156. The Writ Petitions are disposed of in the above terms.

157. Pending application(s), if any, shall stand disposed of.

158. We place on record our deep appreciation for Shri

Arvind P. Datar, Shri C.S. Vaidyanathan, Shri Sidharth

Luthra, Shri P. S. Patwalia, Shri Sanjay Jain, Shri Porus F.

Kaka, Shri Gopal Sankaranarayanan, Shri Balbir Singh, Shri

Gagan Gupta, Shri Puneet Mittal, Shri Sachit Jolly, 136 Shri B.M. Chatterji, Shri Ninad Laud, learned Senior

Counsel/counsel. We also place on record our appreciation for

Shri R. Venkataramani, learned Attorney General for India,

and Ms. Aishwarya Bhati, learned Additional Solicitor General.

…………..............................CJI (B.R. GAVAI)

I respectfully concur with the reasoning and directions.

The Tribunal Reforms Act, 2021 is a replica of the struck down

Ordinance; old wine in a new bottle, the wine whets not the

judicial palette, but the bottle merely dazzle.

.............................................J (K. VINOD CHANDRAN)

NEW DELHI;

NOVEMBER 19, 2025.

137