Rojer Mathew vs South Indian Bank Ltd. & Ors.

(a) (b) – Without expressing a firm and final opinion, the analysis in K.S. Puttaswamy (Aadhaar-5) made its application difficult to the present case and raises a potential conflict between the judgments of Coordinate Benches – Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5), the batch of matters directed to be referred to the Larger Bench. Tribunals – Finance Act, 2017 – S. 184 – Constitutionality of s. 184 on account of excessive delegations – Held s.184 does not suffer from excessive delegations of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of the Supreme Court – The objects of the parent enactments as well as the law laid down by the Supreme Court in R.K. Jain, L. Chandra Kumar, R. Gandhi, Madras Bar Association and Gujarat Urja Vikas undoubtedly bind the delegate and mandatorily requires the delegate u/s. 184 to act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the statutes. Tribunals – The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 – Conformity of the Rules with the judicial principles inherent in the Constitutional scheme as established by the Supreme Court – Held: The composition of the search-cum-Selection Committees under the Rules amounts to excessive interference of the Executive in appointment of members and presiding offices of statutory Tribunals and it is detrimental to the independence of Judiciary – In addition to this, there has been a blatant dilution of judicial character in appointments whereby candidates without any judicial experience are prescribed to be eligible for adjudicatory posts such as that of the presiding Officer – Therefore, the Rules have an effect of dilution of the judicial character in adjudicatory positions – Further, earlier removal of members or presiding officer was done after an enquiry by the Supreme Court Judges and with necessary consultation with the Chief Justice of India, under the present Rules it is permissible for the Central Government to appoint an enquiry Committee for removal of any presiding officer or member on its own – The Members and Presiding Officers of Tribunals cannot be removed without either the concurrence of the Judiciary or in the manner specified in the Constitution for Constitutional Court Judges – Also, there must be uniform age of superannuation for all members in all the Tribunals, the Rules demonstrate disparity in age of superannuation of Members and Chairpersons/Presiding Officers of different Tribunals – Furthermore, there is inconsistency within the Rules with regard to the tenure prescribed for the Members of Tribunals insofar as a fixed tenure of three years for both direct appointments from the Bar and appointment of retired judicial officers or judges of High Court or Supreme Court – It is also discriminatory to the extent that it attempts to create equality between unequal classes – Therefore, the Rules suffer from various infirmities and are contrary to the Parent enactment and the principles envisaged in the Constitution, resultantly, directed to be struck down in entirety.

Tribunals – Finance Act, 2017 – Whether there should be a single Nodal Agency for administration of all Tribunals – Held: It may not be very crucial as to which Ministry or Department performs the duties of Nodal Agency for a Tribunal, but what is of utmost importance is that the Tribunal should not be expected to look towards such Nodal Agency for its day to day requirements – There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and selfsustainable authority for all intents and purposes.

Tribunals – A Judicial Impact Assessment of all tribunals in India – Need for – Held: It was directed in Salem Advocate Bar Association (II) v. Union of India for a Committee to be constituted to assess the need for Judicial Impact Assessment – Pursuant thereto, Jagannadha Rao Committee Report was submitted, it suggested that legislature must analyse the budgetary requirement of the staff, additional expenditure arising out of the new cases consequent to the enactment, the number of Civil and Criminal Cases expected to arise from the new enactment, the requirement of Judges etc. – The legislature has not conformed to the opinion of the Supreme Court with respect to ‘Judicial Impact Assessment’ and thus, has not made any attempt to assess the ramifications of the Finance Act, 2017 – Therefore, the Union of India directed to carry out Financial Impact Assessment in respect of all the Tribunals referable to ss. 158 to 182 of the Finance Act, 2017 and undertake an exercise to assess the need based requirements and make available sufficient resources for each Tribunal established by the Parliament.

Tribunals – Judges of Tribunals set up by Acts of Parliament under Arts. 323-A and 323-B of the Constitution equated in ‘Rank’ and ‘Status’ with constitutional functionaries – Held: There can be no doubt that executive action cannot confer status equivalent to that either Supreme Court or High Court Judges on any member or head of any Tribunal or other judicial fora – Tribunals are not substitutes of Superior Courts and are only supplemental to them – Hence, the status of members of such Tribunals cannot be equated with that of the sitting Judges of Constitutional Courts. Tribunals – Direct Statutory appeals from Tribunals to the Supreme Court – Consideration of – Held: Such statutory appeals take away the inherent ability of the Supreme Court, as envisaged in the Constitution, to regulate cases before it by confining its consideration to cases involving the most egregious of wrongs and/or having the greatest impact on public interest – It is evident that Supreme Court has lost its original character owing to the routine hearing of appeals through invocation of the discretionary jurisdiction u/Art. 136 – For the discharge of constitutional functions of deliberating on substantial questions of law, answering constitutional questions and resolving other issues of great Public importance, it is essential that Supreme Court has adequate time to apply its mind and consider matters in depth the practice of bringing every second case before the Supreme Court u/Art. 136 must be deprecated – Therefore, the Union of India in consultation with either the Law Commission or any other expert body revisit such provisions under various enactments providing for direct appeals to the Supreme Court against orders of Tribunals, and instead provide appeals to Division Benches of the High Courts, if at all necessary.

Tribunals – Amalgamation of Existing Tribunals and setting up of Benches – Need for – Held: The ‘importance’ in distribution of case-load and inconsistencies in nature, location and functioning of Tribunals require urgent attention – It is essential that after conducting a Judicial Impact Assessment, Tribunals be amalgamed with others dealing with similar areas of law, to ensure effective utilisation of resources and to facilitate access to justice – Therefore, the Union Government directed to carry out an appropriate exercise for amalgamation of existing Tribunals adopting the test of homogeneity of the subject matters to be dealt with and thereafter constitute adequate number of Benches Commensurate with the existing and anticipated volume of work. Tribunals – Tribunalisation – A global trend – Discussed. Disposing of the Petition, the Court

HELD : PER RANJAN GOGOI, CJI (FOR HIMSELF

AND N.V. RAMANA, DR. D.Y. CHANDRACHUD, DEEPAK GUPTA AND SANJIV KHANNA, JJ.)

1. ISSUE I : WHETHER THE ‘FINANCE ACT, 2017’ INSOFAR AS IT AMENDS CERTAIN OTHER ENACTMENTS AND ALTERS CONDITIONS OF SERVICE OF PERSONS

MANNING DIFFERENT TRIBUNALS CAN BE TERMED AS A ‘MONEY BILL’ UNDER ARTICLE 110 AND

CONSEQUENTLY IS VALIDLY ENACTED?

1.1 Provisions of Part XIV can be broken down into three broad categories. First, abolition and merger of existing Tribunals; second, uniformizing and delegating to the Central Government through the Rules the power to lay down qualifications; method of appointment and removal, and terms and conditions of service of Presiding Officers and members; and third, termination of services and payment of compensation to presiding officers and members of certain tribunals that have now become de-funct. [Para 112] [85-A-B]

1.2 Upon an extensive examination of the matter, this Court notices that the majority in K.S. Puttaswamy (Aadhaar-5) pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to this Court that the majority dictum in K.S. Puttaswamy (Aadhaar-5) did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court’s satisfaction of the said provisions being incidental to Article 110(1)(a) to (f), it has been argued is not convincingly reasoned, as might not be in accord with the bicameral Parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy (Aadhaar-5) makes its application difficult to the present case and raises a potential conflict between the judgements of coordinate Benches. [Para 122] [90-A-D]

1.3 Given the various challenges made to the scope of judicial review and interpretative principles (or lack thereof) as adumbrated by the majority in K.S. Puttaswamy (Aadhaar-5) and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy (Aadhaar-5), this Court accordingly direct that this batch of matters be placed before Hon’ble the Chief Justice of India, on the administrative side, for consideration by a larger Bench. [Para 123] [90-E]

1.4 There is yet another reason why this Court feel the matter should be referred to a Constitution Bench of seven judges. L. Chandra Kumar, which was decided by a Bench of seven Judges, had also interpreted on the ambit of supervision by the High Courts under Article 227(1) of the Constitution to observe that the Constitutional scheme does not require all adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction, as the idea is to divest the High Courts of their onerous burden. Consequently, adding to their supervisory functions vide Article 227(1) cannot be of assistance in any manner. Thereafter, it was observed that different tribunals constituted under different enactments are administered by the Central and the State Governments, yet there was no uniformity in administration. This Court was of the view that until a wholly independent agency for such tribunals can be set up, it is desirable that all such tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these tribunals. For a number of reasons, the Court observed that the Ministry of Law would be the appropriate ministry. The Ministry of Law in turn was required to appoint an independent supervisory body to oversee the working of the Tribunals. As noticed above, this has not happened. In these circumstances, it would be appropriate if these aspects and questions are looked into by a Bench of seven Judges. [Para 124] [90-F-H; 91-A-B]

2. ISSUE II: WHETHER SECTION 184 OF THE

FINANCE ACT, 2017 IS UNCONSTITUTIONAL ON

ACCOUNT OF EXCESSIVE DELEGATION?

2.1. It will be difficult to hold that Part XIV of the Finance Act suffers from the vice of unguided delegation as it fails to clearly specify the eligibility qualifications for the Members, Chairpersons, Chairman etc. of different Tribunals as such requirements, though important, are not per se functionally undelegatable. [Para 142] [103-F-H]

2.2 The objects of the parent enactments as well as the law laid down by this Court in R.K. Jain, L Chandra Kumar, R. Gandhi, Madras Bar Association and Gujarat Urja Vikas undoubtedly bind the delegate and mandatorily requires the delegate under Section 184 to act strictly in conformity with these decisions and the objects of delegated legislation stipulated in the statutes. It must also be emphasised that the Finance Act, 2017 nowhere indicates that the legislature had intended to differ from, let alone make amendments, to remove the edifice and foundation of such decisions by enacting the Finance Act. Indeed, the Attorney General was clear in suggesting that Part XIV was inserted with a view to incorporate the changes recommended by this Court in earlier decisions. [Para 143] [104A-C]

2.3. On examining the Constitutional scheme, the statutes which had created tribunals and the precedents of this Court laying down attributes of independence of tribunals in different facets, this Court does not think that the power to prescribe qualifications, selection procedure and service conditions of members and other office holders of the tribunals is intended to vest solely with the Legislature for all times and purposes. Policy and guidelines exist. Subject to aforesaid, the submission of Attorney General that Section 184 was inserted to bring uniformity and with a view to harmonise the diverse and wideranging qualifications and methods of appointment across different tribunals carries weight and, needs to be accepted. [Para 148] [107-C-D]

2.4 Cautioning against the potential misuse of Section 184 by the executive, it was vehemently argued by the petitioner(s) that any desecration by the Executive of such powers threatens and poses a risk to the independence of the tribunals. A mere possibility or eventuality of abuse of delegated powers in the absence of any evidence supporting such claim, cannot be a ground for striking down the provisions of the Finance Act, 2017. It is always open to a Constitutional court on challenge made to the delegated legislation framed by the Executive to examine whether it conforms to the parent legislation and other laws, and apply the “policy and guideline” test and if found contrary, can be struck down without affecting the constitutionality of the rule making power conferred under Section 186 of the Finance Act, 2017. [Para 149] [107-E-G]

3. ISSUE III: IF SECTION 184 IS VALID, WHETHER TRIBUNAL, APPELLATE TRIBUNAL AND OTHER

AUTHORITIES (QUALIFICATIONS, EXPERIENCE

AND OTHER CONDITIONS OF SERVICE OF

MEMBERS) RULES, 2017 ARE IN CONSONANCE

WITH THE PRINCIPAL ACT AND VARIOUS

DECISIONS OF THIS COURT ON FUNCTIONING OF

TRIBUNALS?

3.1 (A) Composition of Search-cum-Selection Committees

3.1 (1) The composition of the Search-cum-Selection Committees under the Rules amounts to excessive interference of the Executive in appointment of members and presiding officers of statutory Tribunals and would undoubtedly be detrimental to the independence of judiciary besides being an affront to the doctrine of separation of powers. [Para 154] [118C]

3.1 (2) This Court is in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. [Para 158] [121-D-F]

3.2 (B) Qualifications of members and presiding officers

3.2 (1) There has been a blatant dilution of judicial character in appointments whereby candidates without any judicial experience are prescribed to be eligible for adjudicatory posts such as that of the Presiding Officer. [Para 160] [122-E]

3.2 (2) The contentions of the petitioner(s) are, therefore, duly accepted by this Court insofar as it is contended that the Rules have an effect of dilution of the judicial character in adjudicatory positions. It has been repeatedly ruled by this Court in a catena of decisions that judicial functions cannot be performed by technical members devoid of any adjudicatory experience. [Para 161] [121-B]

3.2 (3) This Court concurs with the consistent view taken by this Court in a number of cases. It is also a well-established principle followed throughout in various other jurisdictions as well, that wherever Parliament decides to divest the traditional Courts of their jurisdiction and transfer the lis to some other analogous Court/Tribunal, the qualification and acumen of the members in such Tribunal must be commensurate with that of the Court from which the adjudicatory function is transferred. Adjudication of disputes which was originally vested in Judges of Courts, if done by technical or non-judicial member, is clearly a dilution and encroachment on judicial domain. With great respect, Parliament cannot divest judicial functions upon technical members, devoid of the either adjudicatory experience or legal knowledge. [Para 163] [127-D-F]

3.2 (4) It is necessary to notice few other changes brought about by the new Rules. Firstly, most Tribunals were earlier headed by judicial members. With the exception of some Tribunals like the Debt Recovery Tribunal, presiding officers were retired judges either of the Supreme Court or of High Courts. Under the present formulation of Rules, the Central Government has widened eligibility by making persons who otherwise have no judicial or legal experience but if they are otherwise of “ability, integrity and standing, and having special knowledge of, and professional experience of” certain specialised subjects “which in the opinion of the Central Government is useful” eligible for being appointed as presiding officers. Further, others who are “qualified to be” Supreme Court and High Court judges can also head Tribunals. A perusal of Articles 124(3) and 217(2) of the Constitution shows that it specifies only the very minimum prerequisites for appointment as a judge of the Constitutional Courts. Instead, a predominant portion of the consideration for appointment to this Court or to the High Courts is uncodified and is based on a holistic consideration of the practice, legal acumen, expertise and character of Advocates. The effect of the new criteria would be to make every second advocate eligible, in effect, vastly diluting the qualifications for appointment. The characteristics necessary of such people are also vague which resultantly increases executive discretion. It thus affects both judicial independence as well as capability and competency of these Tribunals. The power/discretion vested to specify qualifications and decide who should man the Tribunals has to be exercised keeping in view the larger public interest and the same must be just, fair and reasonable and not vague or imprecise. [Para 164] [127-F-H; 128-A-C]

3.2 (5) At this juncture it must also be reiterated that equality can only be amongst equals, and that it would be impermissible to treat unequals equally on the basis of undefined contours of ‘Uniformity’. A Tribunal to have the character of a quasi-judicial body and a legitimate replacement of Courts, must essentially possess a dominant judicial character through their members/presiding officers. It was observed in Madras Bar Association (2010) that it is a fundamental prerequisite for transferring adjudicatory functions from Courts to Tribunals that the latter must possess the same capacity and independence as the former, and that members as well as the presiding officers of Tribunals must have significant judicial training and legal experience. Further, knowledge, training and experience of members/presiding officers of a Tribunal must mirror, as far as possible, that of the Court which it seeks to substitute. [Para 165] [128-D-G]

(C) Constitutionality of procedure of removal

3.3 (1) It is clear from the Scheme contemplated under the Rules that the government has significantly diluted the role of the Judiciary in appointment of judicial members. Further, in many Tribunals like the NGT, the role of the Judiciary in appointment of non-judicial members has entirely been taken away. Such a practice violates the Constitutional scheme and the dicta of this Court in various earlier decisions already referred to. It is also important to note that in many Tribunals like the National Green Tribunal where earlier removal of members or presiding officer could only be after an enquiry by Supreme Court Judges and with necessary consultation with the Chief Justice of India, under the present Rules it is permissible for the Central Government to appoint an enquiry committee for removal of any presiding officer or member on its own. The Rules are not explicit on who would be part of such a Committee and what would be the role of the Judiciary in the process. In doing so, it significantly weakens the independence of the Tribunal members. It is well understood across the world and also under our Constitutional framework that allowing judges to be removed by the Executive is palpably unconstitutional and would make them amenable to the whims of the Executive, hampering discharge of judicial functions. [Para 169] [129-F-H; 130-A-B]

3.3 (2) It is essential that the same be observed in letter and spirit and this Court therefore reiterate that Members and Presiding Officers of Tribunals cannot be removed without either the concurrence of the Judiciary or in the manner specified in the Constitution for Constitutional Court judges. [Para 171] [130G-H]

3.4 (D) Term of Office and Maximum Age

3.4 (1) Various enactments providing for appointment and other incidentals of members have been brought to our notice to demonstrate an apparent disparity in age of superannuation of Members and Chairpersons/Presiding Officers of different Tribunals. Illustratively, Section 14D of the Telecom Regulatory Authority of India Act, 1997 provides a Member of Telecom Disputes Settlement and Appellate Tribunal shall not hold office after attaining the age of sixty-five years, whereas, Section 55(1) of the Consumer Protection Act, 2019 provides that a Member of the National Consumer Disputes Redressal Commission shall not hold office after attaining the age of sixty-seven years. This difference in superannuation age may lead to an undesirable situation wherein a member of a Tribunal with low retirement age can be reappointed in another Tribunal with a higher retirement age. [Para 172] [131-A-C]

3.4 (2) The Constitution of India doesn’t differentiate between High Courts in terms of conditions of service of judges and prescribes a uniform age of superannuation for judges of all High Courts. Conforming to the principle, as held in earlier judgements of this Court, the Tribunals should have similar standards of appointment and service as that of the Court it is substituting. There must, therefore, be a uniform age of superannuation for all members in all the Tribunals. [Para 173] [131-D-E]

3.5 (E) Contradictions in the Rules

The Bench has observed following contradictions in the Rules:

(a) There is an inconsistency within the Rules with regard to the tenure prescribed for the Members of Tribunals insofar as a fixed tenure of three years for both direct appointments from the Bar and appointment of retired judicial officers or judges of High Court or Supreme Court. It is also discriminatory to the extent that it attempts to create equality between unequal classes. The tenure of Members, Vice-Chairman, Chairman, etc. must be increased with due consideration to the prior decisions of the Court.

(b) The difference in the age of superannuation of the Members, Vice-Chairmen and Chairmen, as formulated in the Rules is contrary to the objectives of the Finance Act, 2017 viz., to attain uniformity in the composition of the Tribunal framework. There should be a uniform age of superannuation for Members, Vice-Chairmen, Chairmen, etc. in all Tribunals.

(c) Rule 4(2) of the Rules providing that the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted shall be the convener of the Search-cum-Selection Committee, is in direct violation of the doctrine of Separation of Powers and thus contravenes the basic structure of the Constitution. Corollary to the dictum of this Court in the Fourth Judges Case, judicial dominance in appointment of members of judiciary cannot be diluted by the Executive.

(d) Rule 7 accords unwarranted discretion to the Central Government insofar as it merely directs and not mandates the Central Government to consider the recommendation of Committee for removal of a Member of a Tribunal. The Central Government shall mandatorily consider the recommendation of the Committee before removal of any Member of Tribunal. Furthermore, the proviso to Rule 7 creates an unjust classification between National Company Law Appellate Tribunal (NCLAT) and other fora inasmuch as the removal of Chairperson or member of NCLAT alone is to be in consultation with the Chief Justice of India.

(e) Moral turpitude is a term well defined by this Court in numerous decisions. Rule 7(b) cannot be allowed to survive as it allows the Executive to interpret the meaning of ‘moral turpitude’, which is an encroachment on the judicial domain.

(f) The power of relaxation of rules with respect to any class of persons shall be vested with the Search-cum-Selection Committee and not with the Central Government as provided under Rule 20. As ruled by this Court earlier in Madras Bar Association (2014), the Central Government cannot be allowed to have administrative control over the Judiciary without subverting the doctrine of separation of powers. [Para 179] [133A-H; 134-A-D]

4. ISSUE IV: WHETHER THERE SHOULD BE A

SINGLE NODAL AGENCY FOR ADMINISTRATION OF

ALL TRIBUNALS?

4.1 This Court in L. Chandra Kumar v. Union of India, envisaged the administration of the entire Tribunal Framework in the country to be monitored by a single nodal agency/ministry. It was observed not to be advisable to allow supervision of a Tribunal by a department/ministry which is a party before it. This Court recommended constitution of an independent agency by the concerned Ministry, to oversee the working of Tribunals. The independent agency when constituted, may also prescribe a uniform code for appointment, qualification, condition of service, manner of allocation of fund, etc. of the Tribunals. This will, the Court suggested, minimise the influence of the parent ministry of the Tribunal, in addition to ensuring uniformity in the entire Tribunal framework. [Para 181] [134-G-H; 135-A-B]

4.2 What appears to be of paramount importance is that every Tribunal must enjoy adequate financial independence for the purpose of its day to day functioning including the expenditure to be incurred on (a) recruitment of staff; (b) creation of infrastructure; (c) modernisation of infrastructure; (d) computerisation; (e) perquisites and other facilities admissible to the Presiding Authority or the Members of such Tribunal. It may not be very crucial as to which Ministry or Department performs the duties of Nodal Agency for a Tribunal, but what is of utmost importance is that the Tribunal should not be expected to look towards such Nodal Agency for its day to day requirements. There must be a direction to allocate adequate and sufficient funds for each Tribunal to make it self-sufficient and self-sustainable authority for all intents and purposes. The expenditure to be incurred on the functioning of each Tribunal has to be necessarily a charge on the Consolidated Fund of India. Therefore, hitherto, the Ministry of Finance shall, in consultation with the Nodal Ministry/Department, shall earmark separate and dedicated funds for the Tribunals. It will not only ensure that the Tribunals are not under the financial control of the Department, who is a litigant before them, but it may also enhance the public faith and trust in the mechanism of Tribunals. [Para 184] [136-E-H; 137-A]

5. ISSUE V: WHETHER THERE IS A NEED FOR

CONDUCTING A JUDICIAL IMPACT ASSESSMENT

OF ALL TRIBUNALS IN INDIA?

5.1 The American principle of ‘Judicial Impact Assessment’ was first borrowed by this Court in its dictum in Salem Advocate Bar Assn. (II) v. Union of India, whereby it was observed that it is imperative for the Legislature to perform a Judicial Impact Assessment of the enactment passed to assess its ramifications on the judiciary. This Court had directed for a committee to be constituted to assess the need for Judicial Impact Assessment in the Indian context. Pursuant thereto the Jagannadha Rao Committee Report was submitted. The Report suggested that by way of Judicial Impact Assessment, the legislature must analyse the budgetary requirement of the staff that would require to be created by the statute and additional expenditure arising out of the new cases consequent to the enactment. Further, the financial memorandum, as prepared by the legislature, must specifically include the number of civil and criminal cases expected to arise from the new enactment, requirement of more judges and staff for adjudication of these cases and the necessary infrastructure. [Para 187] [137-E-H; 138-A]

5.2 (1) In the present case, this Court is of the view that the legislature has not conformed to the opinion of this Court with respect to ‘Judicial Impact Assessment’ and thus, has not made any attempt to assess the ramifications of the Finance Act, 2017. It can be legitimately expected that the multifarious amendments in relation to merger and reorganisation of Tribunals may result in massive increase in litigation which, in absence of adequate infrastructure, or budgetary grants, will overburden the Judiciary. [Para 188] [138-E-F]

5.2 (2) In the fitness of things, this Court deems it appropriate to direct the Union of India to carry out financial impact assessment in respect of all the Tribunals referable to Sections 158 to 182 of the Finance Act, 2017 and undertake an exercise to assess the need based requirements and make available sufficient resources for each Tribunal established by the Parliament. [Para 189] [138-G]

6. ISSUE VI: WHETHER JUDGES OF TRIBUNALS SET UP BY ACTS OF PARLIAMENT UNDER ARTICLES

323-A AND 323-B OF THE CONSTITUTION CAN BE

EQUATED IN ‘RANK’ AND ‘STATUS’ WITH

CONSTITUTIONAL FUNCTIONARIES?

6.1 (1) In light of the unequivocal assertions of a coordinate bench of this Court, there can be no doubt that executive action cannot confer status equivalent to that of either Supreme Court or High Court judges on any member or head of any Tribunal or other judicial fora. [Para 193] [141-B]

6.1 (2) Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323-B of the Constitution cannot seek equivalence with High Courts or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he/she no longer enjoys the Constitutional status, the statutory position occupied by him/her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme. [Para 194] [141-C-D]

7. ISSUE VII: WHETHER DIRECT STATUTORY

APPEALS FROM TRIBUNALS TO THE SUPREME

COURT OUGHT TO BE DETOURED?

7.1 Such statutory appeals take away the inherent ability of the Supreme Court, as envisaged in the Constitution, to regulate cases before it by confining its consideration to cases involving the most egregious of wrongs and/or having the greatest impact on public interest. [Para 205] [146-E]

7.2 Further, in providing for appeals directly from Tribunals, the jurisdiction of High Courts is in effect curtailed to a great extent. Not only does this hamper access to justice, but it also takes away the much needed exposure for High Court judges, earnestly needed in a vibrant and ever-evolving judiciary. Since majority of the judges of the Supreme Court are elevated from the High Courts, their lack of exposure to these specialised areas of law hinders their efficacy in adjudicating the direct statutory appeals from specialised Tribunals. [Para 206] [146-F-G]

7.3 Providing statutory appeals directly to the Supreme Court dents this to no end. With increasing tribunalisation, statutory appeal provisions are ostensibly being included without undertaking any ‘Judicial Impact Assessment’. As of last count there are several hundreds of cases which have been decided by the NCLAT and many other thousands by other tribunals pending in this Court. [Para 214] [149-G]

7.4. In light of this, provisions for statutory appeals directly and liberally to the Supreme Court raises the inevitability of bogging the Court down and inhibiting its Constitutional objective. Further, providing statutory appeals to this Court against orders of Tribunals also undermines the essence of tribunalisation. It is hardly rational to state on one hand that an alternate to the ordinary method of justice dispensation needs to be provided owing to the complicated procedures and owing to the lack of specialisation of District and High Courts, and in the same breadth also provide statutory appeals to the final Court in that very original system. [Para 216] [150-C-D]

7.5 If High Courts are ill placed to hear routine matters then it hardly seems justifiable that this Court would be any better placed to resolve disputes in appellate jurisdiction. Finality as a principle must be encouraged and providing statutory appeals to the Supreme Court only undermines the same. Instead, no discernible harm would arise if decisions of Tribunals or High Courts attain finality, without reaching this Court. [Para 217] [150-E]

8. ISSUE VIII: WHETHER THERE IS A NEED FOR

AMALGAMATION OF EXISTING TRIBUNALS AND

SETTING UP OF BENCHES

8.1 The ‘imbalance’ in distribution of case-load and inconsistencies in nature, location and functioning of Tribunals require urgent attention. It is essential that after conducting a Judicial Impact Assessment as directed earlier, such ‘niche’ Tribunals be amalgamated with others dealing with similar areas of law, to ensure effective utilisation of resources and to facilitate access to justice. [Para 226] [155-F]

CONCLUSION

9. In light of the discussions and analysis, it is held that:

(i) The issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench.

(ii) Section 184 of the Finance Act, 2017 does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court.

(iii) The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities as observed earlier. These Rules formulated by the Central Government under Section 184 of the Finance Act, 2017 being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this Court, are hereby struck down in entirety.

(iv) The Central Government is accordingly directed to reformulate the Rules strictly in conformity and in accordance with the principles delineated by this Court in R.K. Jain, L. Chandra Kumar, Madras Bar Association and Gujarat Urja Vikas Ltd. conjointly read with the observations made in the earlier part of this decision.

(v) The new set of Rules to be formulated by the Central Government shall ensure non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind the fact that the Chairperson and Members appointed after retirement and those who are appointed from the Bar or from other specialised professions/services, constitute two separate and distinct homogeneous classes.

(vi) It would be open to the Central Government to provide in the new set of Rules that the Presiding Officers or Members of the Statutory Tribunals shall not hold ‘rank’ and ‘status’ equivalent to that of the Judges of the Supreme Court or High Courts, as the case may be, only on the basis of drawing equal salary or other perquisites.

(vii) There is a need-based requirement to conduct ‘Judicial Impact Assessment’ of all the Tribunals referable to the Finance Act, 2017 so as to analyse the ramifications of the changes in the framework of Tribunals as provided under the Finance Act, 2017. Thus, we find it appropriate to issue a writ of mandamus to the Ministry of Law and Justice to carry out such ‘Judicial Impact Assessment’ and submit the result of the findings before the competent legislative authority.

(viii) The Central Government in consultation with the Law Commission of India or any other expert body shall re-visit the provisions of the statutes referable to the Finance Act, 2017 or other Acts as listed in para 174 of this order and place appropriate proposals before the Parliament for consideration of the need to remove direct appeals to the Supreme Court from orders of Tribunals. A decision in this regard by the Union of India shall be taken within six months.

(ix) The Union Government shall carry out an appropriate exercise for amalgamation of existing Tribunals adopting the test of homogeneity of the subject matters to be dealt with and thereafter constitute adequate number of Benches commensurate with the existing and anticipated volume of work. [Para 228] [156-A-H; 157-A-F]

PER DR. D. Y. CHANDRACHUD, J.

Passage as a Money Bill

10. 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. [Para 88] [217-B-F]

Violation of directions issued by this Court

11.1 It is evident that the Search-cum-Selection Committee is constituted entirely from personnel within or nominated by the Central Government. Barring the National Company Law Appellate Tribunal, the Search-cum-Selection Committee for all other seventeen tribunals specified in the Schedule is constituted either entirely from personnel within or nominated by the Central Government or comprises a majority of personnel from the Central Government. The Search-cum-Selection Committee of the National Company Law Appellate Tribunal consists of an equal number of members from the judiciary as well as from the Central Government with no casting vote to the Chief Justice of India or their nominee. [Para 90] [218-CE]

11.2 The procedure for selection is fundamentally destructive of judicial independence. The Union Government has vital status in the disputes before many tribunals. Even otherwise, conferring upon the government such a dominating and overwhelming voice in making appointments is a negation of judicial independence. [Para 90] [219-E]

11.3 The constitution of the Search-cum-Selection committees as stipulated in the Schedule to the 2017 Rules cannot pass constitutional muster under a system governed by the rule of law that accords primacy to the independence of the judiciary. Independence of the judiciary requires that judicial functioning be free from interference by the other two organs of the state. The Central Government is the largest litigant before the tribunals constituted under various statutes. The independent functioning of the tribunals stands compromised where the executive has the controlling authority in the selection of members to the tribunals. The executive is often a litigant before and has an interest in the disputes which are adjudicated by the tribunals. The constitution of the Search-cum-Selection committees stipulated in the 2017 Rules violates the principle of judicial independence and the directions issued by this Court in R Gandhi and Madras Bar Association. [Para 93] [221-E-G]

11.4 This Court finds that though the decision in R Gandhi was delivered in 2010 and in Madras Bar Association in 2014, the same anomalies have persisted. An attempt has been made to dilute judicial independence by a creeping assertion of executive power. This is unconstitutional. [Para 98] [224-G-H]

Severability

12. In the present case, Part XIV of the Finance Act 2017 is severable. Parliament would, in any event, have enacted the valid parts of the Finance Act 2017 if it had known that Part XIV is invalid. The valid and invalid parts are not so inextricably linked that the invalidity of Part XIV should result in the invalidity of the rest. Nor is Part XIV a part of a composite scheme linked to the other parts of the Finance Act 2017. Even after the excision of Part XIV the remaining part of the Finance Act would still survive on its own. Hence, Part XIV of the Finance Act 2017 can be excised from the Act. [Para 101] [227H; 228-A-B]

12.2 Finally, a fervent plea was made by the Attorney General to the effect that even though some provisions contained in the Rules framed on 1 June 2017 may run contrary to the principles enunciated by this Court in R Gandhi and Madras Bar Association, the Central Government would be willing to proceed on the basis of the interim orders which were passed by this Court during the pendency of the proceedings with certain modifications. This Court unable to accept the submission. Part XIV of the Finance Act 2017 could not have been enacted in the form of a Money Bill. The rules framed by the Central Government are unconstitutional on the ground that they violate the principles of judicial independence set out in judgments of this Court. [Para 102] [228-C-D]

Conclusion

13. Part XIV of the Finance Act 2017 could not have been enacted in the form of a Money Bill. The rules which have been framed pursuant of the rule making power under Section 184 are held to be unconstitutional. However, since during the pendency of these proceedings, certain steps were taken in pursuance of the interim orders and appointments have been made, it is directed that those appointments shall not be affected by the declaration of unconstitutionality. The terms and conditions governing the personnel so appointed shall however abide by the parent enactments. Upon the declaration of unconstitutionality, the conditions specified in all corresponding aspects in the parent enactments shall continue to operate. [Para 103] [228-E-F]

14. This Court has repeatedly emphasised the need for setting up an independent statutory body to oversee the working of tribunals. Despite the directions issued by this Court in Chandra Kumar nearly two decades ago, no action has been taken by the legislature to put in place an umbrella organisation which would be tasked with addressing the drawbacks of the system to which this Court has adverted above. The lack of a single authority to ensure competence and uniform service conditions has led to a fragmented tribunal system that defeats the purpose for which the system was constituted. Moreover, the co-ordinating authority for all tribunals must be the Department of Justice. Vesting that function in individual ministries has led to haphazard evolution of the tribunal structure, besides posing serious dangers to the independence of tribunals. [Para 104] [228-G-H; 229-A-B]

15. It is imperative that an overarching statutory organisation be constituted through legislative intervention to oversee the working of tribunals. This Court recommends the constitution of an independent statutory body called the “National Tribunals Commission” to oversee the selection process of members, criteria for appointment, salaries and allowances, introduction of common eligibility criteria, for removal of Chairpersons and Members as also for meeting the requirement of infrastructural and financial resources. The legislation should aim at prescribing uniform service conditions for members. The Commission should comprise the following members:

(i) Three serving judges of the Supreme Court of India nominated by the Chief Justice of India;

(ii) Two serving Chief Justices or judges of the High Court nominated by the Chief Justice of India;

(iii) Two members to be nominated by the Central Government from amongst officers holding at least the rank to a Secretary to the Union Government: one of them shall be the Secretary to the

Department of Justice who will be the ex-officio convener; and

(iv) Two independent expert members to be

nominated by the Union government in

consultation with the Chief Justice of India. [Para 105] [229-B-F]

The senior-most among the Judges nominated by the Chief Justice of India shall be designated as the Chairperson of the NTC. [Para 106] [229-F-G]

16. While the setting up of the NTC is within the competence of the legislature, it must be ensured that the guidelines that have been laid down by this Court to ensure the independence and efficient functioning of the tribunal system in India are observed. The independence of judicial tribunals is an inviolable feature of the basic structure of the Constitution. The procedure of selection, appointment, removal of members and prescription of the service conditions of tribunal members determine the independence of the tribunals. As this Court has held, in preserving the independence of the tribunals as a facet of judicial independence, the adjudicatory body must be robust: subservient to none and accountable to the need to render justice in the context of specialized adjudication. This is reflected in the need for vigilance in guarding the independence of courts and tribunals. [Para 107] [229-G-H; 230-A-B]

17. Competence, professionalism and specialisation are indispensable facets of a robust tribunal system designed to deliver specialised justice. The Commission must be vested with the power to oversee the administration of all tribunals established under the enactments of Parliament to ensure the adequate manning of the tribunals with the infrastructure and staff required to meet the exigencies of the system. The Union government should also consider formulating a law to ensure the constitution of an All India Tribunal Service governing the recruitment and conditions of service of the non-adjudicatory personnel for tribunals. At present, the administrative staff of the tribunals is by and large brought on deputation. The tribunals are woefully short of an adequate complement of trained administrative personnel. Hence, there is an urgent need to set up an All India Tribunal Service in the interests of the effective functioning of the tribunal system. [Para 108] [230-C-E] PER DEEPAK GUPTA, J.

Issue No. 1

18. There is total agreement with the Chief Justice in as much as he has held that the decision of the Hon’ble Speaker of the House of People under Article 110 (3) of the Constitution is not beyond judicial review. There is also an agreement with his views that keeping in view of the high office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are possible then there can be no manner of doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, it is agreed with the Hon’ble Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a larger bench. [Para 18] [236-E-F] Issue no. 2

19. As far as Issue No.2 is concerned, there is disagreement with the conclusion of Chief Justice. There can be no doubt that Parliament is not expected to deal with all matters and it can delegate certain “non-essential” matters to the executive. Every condition need not be laid down by the Legislature. [Para 19] [236-G]

20. I am in respectful disagreement with the Chief Justice that the objects of the parent enactments and the law laid down by this Court in R. K. Jain v. Union of India, L. Chandra Kumar, Union of India v.Madras Bar Association, Madras Bar Association v. Union of India, Madras Bar Association v. Union of India, Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. in essence should be read as the guidelines. One would expect the Union Government to abide by the directions of this Court. However, this expectation has been belied by this very enactment which violates every principle of law laid down by this Court and, as held in the judgments of both my brothers, the Rules framed by the delegatee are violative of the law laid down by this Court. In this background, it is apparent that both the delegator and the delegatee felt that they were not bound by these judgments. This is also apparent from the fact that the Rules framed by the delegatee have not been brought in consonance with the law by the delegator. [Para 30] [240-F-G; 241-A-B]

Issue nos. 4,5,7 and 8

21. There are various reasons why there should be one nodal agency. Tribunals are facing many problems like lack of manpower, very few benches, vacancies lying unfilled for long period, financial dependence on the department which may be litigating before the tribunal etc. These are ills which can be avoided if Tribunals fall under one umbrella organisation. One umbrella organisation will be better equipped to understand the problems faced by all the Tribunals. This could lead to standardization of Tribunals and a uniform approach to the needs of each tribunal. A large number of tribunals, especially those cast with the duty of discharging adjudicatory functions have been constituted with a view to replace the courts and in many cases the jurisdiction earlier exercised by the High Courts has been vested in such tribunals. It is, therefore, imperative that these tribunals must be manned by persons of impeccable integrity, high intellect and having vast experience in the field in which they will exercise jurisdiction. These tribunals also must have functional autonomy. This cannot be achieved unless there is a nodal body which shall look after the administrative needs of the tribunals. For more than 2 decades the Government has not thought it fit to comply with the 7-Judge Bench judgment of this Court in L. Chandra Kumar. These matters cannot be permitted to linger on indefinitely. Therefore, a direction must be given to the Government to set up a single nodal agency within a period of 6 months from today till which time the present system may continue. Merely giving financial autonomy to the tribunals will not do away with the need of having one common umbrella organisation to supervise all the tribunals. [Para 36] [242-D-H; 243-A]

22. Even without carrying out any judicial impact assessment it is clear, as held in Madras Bar Association, 2010 that tribunals in India have unfortunately not achieved full independence. When tribunals are established, they depend upon the sponsoring department for funds, infrastructure and even space for functioning. Administrative members of the tribunal are, more often than not, drawn from this department. This, in my opinion, strikes at the very root of judicial independence because the biggest litigant or stakeholder itself becomes part and parcel of the adjudicating body which is supposed to be free, independent and fearless. [Para 37] [243-B-C]

23. (1) The need for carrying out judicial impact assessment of all the tribunals in India cannot be over emphasised. Experience has shown that the tribunals are not fully independent and more often than not, the number of vacancies in the tribunals are so high as to make the tribunals dysfunctional if not non-functional. The promised benches remain a mirage in the air and the litigants from remote areas of the country have to come to the State capitals or the National Capital for redressal of their grievances. [Para 38] [243-B]

23. (2) The committee which carries out the judicial impact assessment of the functioning of the tribunals has to deal with a whole lot of issues. It is neither feasible nor proper to lay down all the issues in this judgment but some are highlighted. Another important issue which must be dealt with is whether the tribunals have really helped in early disposal of the cases. The time spent for disposal may vary from case to case but this Court is mainly dealing with the cases which end in the High Courts or at the Supreme Court. This must be done not only on an all India basis but also on State to State basis. There are many smaller States in the country where the Civil Courts and the High Courts are not overburdened with work. In these States, the cases are decided much faster than in many other larger States. Normally, it is these smaller States which do not get permanent benches, sometimes not even Circuit Benches. It is a paradox that the States which are judicially well administered and where disposal is quick, do not get the permanent benches and the litigants suffer whereas States which are very slow in disposing of the cases get more benches. Even when Circuit Benches come to these States there is a huge time gap between two sittings. The whole purpose of providing cheaper and faster justice gets lost because the Circuit Benches come rarely and many times the constitution of the Circuit Benches changes on every visit resulting in matters being reheard every time. [Para 43] [245E-H; 246-A-B]

24. Having tribunals without benches in at least the capitals of States and Union Territories amounts to denial of justice to citizens of those States and Union Territories. It also makes the justice delivery system very metropolis centric. This has many adverse effects. The bench and the bar in smaller district towns and capitals of smaller States which were handling these matters in a competent manner are deprived of handling these types of cases. This also makes access to justice expensive for the litigants. It also leads to a situation where the bench and the bar in these areas would not have any experience of handling matters relating to jurisdictions transferred to tribunals which they used to handle earlier. Therefore, the local bench and bar will never develop and the entire bulk of work will be captured by those practicing in Delhi or in those State capitals where benches of the tribunals are set up. Instead of taking justice to the common man, he is forced to spend more money, spend more time and travel long distances in his quest for justice, which is his fundamental right. [Para 44] [246-B-D]

25. The litigants cannot wait for judicial impact assessment and action by the Government which may or may not take place. Experience has shown that the judgments right from L. Chandra Kumar to Madras Bar Association, 2010 have not been complied with by the Union in letter and spirit. Citizens of this country cannot be denied justice which is the first promise made in the Preamble. Therefore, whichever State/Union Territory the bench of a particular tribunal is not established or functioning, the litigants of that State will have a right to invoke the extraordinary writ jurisdiction of the jurisdictional High Court under Article

226 of the Constitution for redressal of their grievances. They cannot be expected to go to far off distant places and spend huge amounts of money, much beyond their means to ventilate their grievances. The alternative remedy of approaching a tribunal is an illusory remedy and not an efficacious alternative remedy. The self-imposed bar or restraint of an alternative efficacious remedy would not apply. Such litigants are entitled to file petitions under Article 226 of the Constitution of India before the jurisdictional High Court. In L. Chandra Kumar it was clearly held that the right of judicial review is a part of the basic structure of the Constitution and this right must be interpreted in a manner that it is truly available to the litigants and should not be an illusory right. [Para 45] [246-E-H; 247-A-B]

26. One more aspect which needs to be looked into is the need to have a two-tier tribunal system like in the United Kingdom- a lower tribunal and an appellate tribunal. If there are two-tier tribunals then there would be adjudication at the appellate level by an appellate tribunal. Having one appellate forum within the hierarchy of tribunals would probably lessen the burden on the High Courts and the Supreme Court. [Para 46] [247-B]

27. Recruitment to the lower tribunal should be done on the basis of an objective criteria like the written test conducted for the post of District Judges. The persons selected to the lower tribunals can be made eligible for promotion to the appellate tribunals. In fact, there can be common service to man more than one or more tribunals. [Para 47] [247-C-F]

28. If there are tribunal services and there is provision for appeal within the hierarchy of the tribunals and the High Courts exercise their writ jurisdiction or if in some matters appeals are provided to the High Courts in the first instance, many of the ills which plague the system may be overcome. If the aforesaid system is followed then the question of appointing retired Judges or bureaucrats will not arise. The amicus curiae in his note has raised an issue that tribunals should not become a haven for retired persons. In my view, there should normally be no post retiral sinecures. Though the ideal situation would be to have no appointments from retired judges or bureaucrats, this may not be possible in the near future because there are no tribunal services and most of the posts at this stage may have to be filled from amongst retired persons. At the same time, an effort has to be made to ensure that in the foreseeable future the number of retired persons being reappointed is brought down and more persons from within the tribunal services are appointed up to the highest level in the tribunal. [Para 48] [247-G-H; 248-A-B]

29. There may be some posts which require retired judges to be appointed such as Lokpal, Lokayukta, Chairpersons of the Human Rights Commission, Chairman of the Law Commission of India, etc. But this should not become a matter of routine especially when the appointments are being made by the executive. If the administration makes appointments and judges, serving or newly retired judges, are under consideration for such posts then the independence of the judiciary is likely to be compromised. The public of this country still reposes great faith in the judiciary. That faith will be eroded in case it is felt that the appointments are made for extraneous reasons. Most judges live up to the expectations of the high standards of integrity and propriety expected from them but one cannot shut our eyes to the harsh reality that there are a few black sheep. One cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post retiral sinecures. Therefore, the majority of members of the selecting body must comprise of the Chief Justice of India and/or his/her nominees and the views of the Chief Justice and/or his/her nominees must be given precedence over the views of other members. [Para 49] [248-C-F]

30. It is agreed with the Chief Justice that an attempt should be made to do away with filing of first appeal as a matter of right to the Supreme Court. At present, at least 2 dozen statues provide for appeals directly to the Supreme Court. The Supreme Court becomes a Court of first appeal which is highly avoidable. If the law laid down in L. Chandra Kumar is followed, the High Courts should have the jurisdiction to entertain writ petitions against the orders of the tribunals. This will reduce the burden on the Supreme Court. Even more importantly, the High Courts, when they entertain these matters, will deal with them within the limited scope of writ jurisdiction. If the jurisdiction of the High Courts is bypassed by providing for appeals directly to the Supreme Court, soon a stage will come when we will have no High Court Judges who would have heard matters in various jurisdictions. It would be virtually impossible for them to handle such matters in the Supreme Court where the tenure of a Judge is on an average only about 4 years. [Para 51] [249-B-D]

31. The next issue is who should carry out the judicial impact assessment. The Judicial Impact Assessment Committee should comprise of two retired judges of the Supreme Court, the senior being the Chairperson of the Committee, and one retired Chief Justice of a High Court all three to be nominated by the Chief Justice of India. Out of the three at least two should have been the Chairperson or members of tribunals. Two members of the Executive, not below the rank of Secretary, to the Government of India, one from the Ministry of Law and Justice and one from some other branch can also be members but these members should be appointed in consultation with the Chief Justice of India. [Para 53] [249-E-G]

32. The last issue is whether there should be a Commission or a body to oversee the appointment of members of various tribunals. In my view it is necessary to have such a Commission which is itself an independent body manned by honest and competent persons. This body is required to select those persons who man the specialised tribunals in terms of the law laid down in various judgments of this Court. There is need to have persons who not only have grassroot experience but a judicious mix of judicial members and those with grassroot experience. There is need to have persons who have an independent outlook, integrity, character, good reputation and people who are totally free from the influence or pressure from the Government. It is only then that the people will have faith in the adjudicating mechanism of the tribunals. [Para 54] [249G-H; 250-A-B] PER RANJAN GOGOI, CJI (FOR HIMSELF AND

N.V. RAMANA, DR. D.Y. CHANDRACHUD, DEEPAK

GUPTA AND SANJIV KHANNA, JJ.):

Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1 : [2010] 6 SCR 857 ; L. Chandra Kumar v. Union of India (1997) 3 SCC

261 : [1997] 2 SCR 1186 ; R.K. Jain v. Union of India (1993) 4 SCC 119 : [1993] 3 SCR 802 ; Madras Bar Association v. Union of India (2014) (2014) 10 SCC 1 : [2014] 10 SCR ; Gujarat Urja Vikas Ltd. v. Essar Power Ltd. (2016) 9 SCC 103 : [2016] 5 SCR

10 ; Salem Advocate Bar Assn. (II) v. Union of India (2005) 6 SCC 344 : [2005] 1 Suppl. SCR 929 ; Raja Ram Pal v. Lok Sabha (2007) 3 SCC 184 : [2007] 1 SCR 317 ; Gwalior Rayon Silk Mfg. (Wvg.) Co. v. Asstt. Commissioner of Sales (1974) 4 SCC 98 : [1974]

2 SCR 879 ; T.N. Seshan v. Union of India (1995) 4 SCC 611 : [1995] 2 Suppl. SCR 106 ; Union of India v. Major General Shrikant Sharma (2015) 6 SCC 773 : [2015] 4 SCR 676 – relied on.

Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand AIR 1963 SC 677 : [1963] Suppl. SCR 242 ; Associated Cement Co. Ltd. v. PN Sharma AIR 1965 SC 1595 : [1965] SCR 366 ; M.C. Mehta v. Union of India (1986)

2 SCC 176 : [1986] 1 SCR 312 ; Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1 : [2010] 6 SCR 857 ; Madras Bar Association v. Union of India (2015) 8 SCC 583 : [2015] 6 SCR

638 ; Rajiv Garg v. Union of India (WP No. 120 of 2017) on 08th February, 2013 ; MSM Sharma v. Dr. Shree Krishna Sinha (2007) 3 SCC 184 : [2007] 1 SCR 317 ; Union of India v. Jyoti Prakash Mitter (1971) 1 SCC 396 : [1971] 3 SCR 483 ; R (Jackson) v. Attorney General [2005] UKHL 56 ; Mohd. Saeed Siddiqui v. State of Uttar Pradesh (2014) 11 SCC 415; Yogendra Kumar Jaiswal v. State of Bihar (2016) 3 SCC 183 : [2015] 14 SCR 1037 ; Justice Puttaswamy (Retd.) and Anr. v. Union of India (2019) 1 SCC 1 ; Hari Ram v. Babu Gopal Prasad (1991) Supp. 2 SCC

608 ; M/s Saru Smelting (P) Ltd. v. Commissioner of Sales Tax, Lucknow (1993) Supp. 3 SCC 97 : [1993] 3 SCR 719 ; Kihoto Hollohan v. Zachillhu and Others (1992) Supp. 2 SCC 651 : [1992] 1 SCR

686 ; In re: The Delhi Laws Act, 1951 AIR [1951] SCR

747 ; B. Shama Rao v. Union Territory of Pondicherry, (2015) 4 SCC [2015] 2 SCR 51 ; Ramesh Birch v. Union of India 1990 AIR 560 : [1989] 2 SCR 629 ; Devi Das Gopal Krishnan & Ors v. State of Punjab & Or AIR 1967 SC 1895 : [1967] SCR 557 ; Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another AIR 1968 SC 1232 : [1968] SCR 251 ; M.K. Papiah & Sons v. Excise Commissioner (1975) 1 SCC 492 : [1975] 3 SCR 607 ; Avinder Singh v. State of Punjab (1979) 1 SCC 137 : [1979] 1 SCR 845 ; Registrar of Coop. Societies v. K. Kunjabmu (1980) 1 SCC 340 : [1980]

2 SCR 260 ; Keshavlal Khemchand and Son Private Limited & Others v. Union of India (2015) 4 SCC

770 : [2015] 2 SCR 51 ; Supreme Court AdvocatesOn-Record Association and Another v. Union of India (2016) 5 SCC 1 : [2015] 13 SCR 1 ; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1 ; Union of India v. Madras Bar

Association (2010) 11 SCC 1 : [2010] 6 SCR 857 ; Madras Bar Association v. Union of India & Anr. (2014) 10 SCC 1 : [2014] 10 SCR 1 ; Bihar Legal Support Authority v. Chief Justice of India (1986) 4 SCC 767 : [1987] 1 SCR 295 ; Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 : [1996] 10 Suppl. SCR 585 ; Sangram Singh v. Election Tribunal [1955]

2 SCR 1 – referred to.

Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803) – referred to.