CONFLICT BETWEEN LEGISLATURE AND JUDICIARY ON ‘ABOLITION OF TRIBUNALS & HOW

IT WOULD AFFECT THE ADMINISTRATIVE BODIES AND THE FUNCTIONING OF THE

TRIBUNALS’

1. The Tribunals Reforms Bill 2021

2. How Tribunalisation helps the functioning or operating of Administrative bodies
3. Tribunalisation: an impact in solving ground level problems of legislature
4. Provisions dealing with tribunalisation under the Indian Constitution (Art- 323A,
323B, Part 14A)
5. Jurisdiction of tribunals in service matters
6. The Administrative Tribunals Act
7. JC Shah Committee

How Tribunalisation helps the functioning or

operating of Administrative bodies

An administrative tribunal is not an executive body or administrative department of the

Government. The functions entrusted to and the powers conferred on an administrative
tribunal are quasi-judicial and not purely administrative in nature. It cannot delegate its quasi-
judicial functions to any other authority or official. It cannot give decisions without giving an
opportunity of being heard to the parties or without observing the principles of natural justice.
An administrative tribunal is bound to act judicially. It must record findings of facts, apply
legal rules to them correctly and give its decisions. Even when the discretion is conferred on
it, the same must be exercised judicially and in accordance with well-established principles of
law. The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals. “They are ‘administrative’ only because they are part of an
administrative scheme for which a Minister is responsible to Parliament, and because the
reasons for preferring them to the ordinary courts are administrative reasons.”1

The Administrative Tribunals have been established to overcome the major lacuna present in
the Justice delivery system in the light of the legal maxim Lex dilationes semper exhorret
which means ‘The law always abhors delays’ 2. According to Neil Hawke, “Administrative
tribunals might well be referred to as ‘administrative courts’ since usually their task is to
adjudicate disputes which arise from the statutory regulation of a wide variety of situations,
some of which will involve decisions or other action by administrative agencies, or
relationship between private individuals”3.

1
Wade & Forsyth, Administrative Law (2005) at p.910.
2
K. I. Vibhute, “Administrative Tribunals and the High Courts: A Plea for Judicial Review” 29 JILI 524 (1987).
3
Hawke, Neil, Introduction to Administrative Law, Cavendish Publishing Limited, United Kingdom, 1st edn.,
1998 at p. 65.
Administrative tribunals are constitutionally recognized under Article 32, 136, 226 and 227
of the constitution of India. Types of Administrative Tribunal - Industrial Tribunal, Copy
Right Board, Income-tax Appellate Tribunal, Claim Tribunal, Election Tribunal etc. An
Administrative Tribunal is neither a Court nor an executive body. It stands somewhere
midway between a Court and an administrative body.
An administrative tribunal is similar to a court in certain aspects. Both of them are constituted
by the State, invested with judicial powers and have a permanent existence. Thus, they are
adjudicating bodies. They deal with and finally decide disputes between parties which affect
the rights of subjects. As observed by the Supreme Court in Associated Cement Co. Ltd. v.
P.N. Sharma4, ‘the basic and the fundamental feature which is common to both the courts
and the tribunals is that they discharge judicial functions and exercise judicial powers which
inherently vest in a sovereign State’.

JC Shah Committee
The Law Commission of India in its 14th Report (1958) titled “Reform of Judicial
Administration” recommended the establishment of an appellate Tribunal or Tribunals at the
Centre and in the States. Later, in its 58th Report (1974) titled ‘Structure and Jurisdiction of
the Higher Judiciary’, the Law Commission urged that separate
high powered Tribunal or Commission should be set up to deal with the service matters and
that approaching the Courts should be the last resort. The High Court Arrears Committee set
up under the chairmanship of Justice J. C. Shah (1969), recommended for setting up of an
independent Tribunal to handle service matters pending before the High Courts and the
Supreme Court. Later on, the Swaran Singh Committee which was appointed to study, ‘the
required changes in fundamental laws’, recommended in 1976 that the Administrative
Tribunals may be set up under a Central law, both at the State level and at the Centre to
decide cases relating to service matters.
Based on the recommendations of the Swaran Singh Committee, Part XIV-A was added by
the Constitution (Forty-second Amendment) Act, 1976, titled as ‘Tribunals’ which provided
for the establishment of ‘Administrative Tribunals’ under Article 323-A and ‘Tribunals for
other matters’ under Article 323-B. The main objective of establishing Tribunals as set out in
the Statement of Objects and Reasons of The Constitution (Forty-Second Amendment) Act,
1976 is as under: ‘To reduce the mounting arrears in High Courts and to
secure the speedy disposal of service matters, revenue matters and certain other matters of
special importance in the context of the socio-economic development and progress, it is
considered expedient to provide for administrative and other tribunals for dealing with such
matters while preserving the jurisdiction of the Supreme Court in regard to such matters
under article 136 of the Constitution.’
With the enactment of Administrative Tribunals Act, 1985, a large number of cases relating
to service matters pending before various Courts were brought within the jurisdiction of the
Tribunals. Administrative Tribunals created under Article 323A have
been freed from technical rules of Indian Evidence Act, 1872 and procedural shackles of the
Code of Civil Procedure, 1908 but, at the same time, they have been vested with the powers

4
1965 AIR 1595, 1965 SCR (2) 366.
of Civil Court in respect of some matters including the review of their own
decisions and are bound by the principles of natural justice5.
Regarding the problem of backlog and delayed disposal of case the Government set up the
Administrative Reforms Commission in 1967. It was to examine the problem, suggests
solutions and also to recommend the suitable areas in which tribunals could be set up,
according to this commission The reasons for the growth of administrative tribunals are as
follows:
1) Inadequacy of the traditional judiciary to effectively decide administration-related matters
especially when it came to technicalities.
2) The traditional judiciary was seen to be slow, costly and excessively procedural.
The Commission also recommended the establishment of independent tribunals in the
following areas:
a) Service matters and dispute of employees under the state
b) Orders of assessment on adjudication under Customs, Central Excise, Sales Tax and orders
under the Motor Vehicles Act.

TYPES OF ADMINISTRATIVE TRIBUNALS

There are different types of administrative tribunals, which are governed by the statues, rules,
and regulations of the Central Government as well as State Governments.

1. Central Administrative Tribunal (CAT)- The Central Administrative Tribunal

(CAT) was established through the 42nd constitutional amendment act under Part
XIV-A of the constitution. The CAT:

 Adjudicates disputes with respect to recruitment and conditions of service of persons

appointed to public services and posts in connection with the affairs of the Union.
 CAT also has jurisdiction on the employees of Public Sector Undertakings/
Organizations notified by the Government.
 CAT is not bound by the procedural logjams and a person making an application to a
tribunal may either appear in person or take the assistance of a legal practitioner.

The Delhi High Court has ruled that the Central Administrative Tribunal can exercise the
same jurisdiction and powers as a High Court in respect of its contempt proceedings.
CAT which has original jurisdiction in relation to recruitment and conditions of service of
persons is actively intervening against the politically motivated transfer of officials. The
CAT recently took strong objections to an order of Delhi High Court for directing it to
swiftly decide a matter that was originally pending before the tribunal. With passing time,
the Central Administrative Tribunal has become more assertive in discharging its duties
as an independent judicial authority. This is even recognised by the judiciary.

2. Income Tax Appellate Tribunal (ITAT)-

5
State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612.
Section 252 of the Income Tax Act, 1961 provides that the Central Government shall
constitute an Appellate Tribunal consisting of many Judicial Members and Accountant
members as it thinks fit to exercise the powers and functions conferred on the Tribunal by
the Act. Income Tax Appellate Tribunal (ITAT) is a quasi-judicial authority to file
appeals against the orders of income tax authorities. A tax appeal can be filed by a
taxpayer who does not agree with the assessment order or any other order, passed by an
income-tax authority. Similarly, an income-tax authority can also file an appeal against
any order passed by lower income-tax authorities. The ITAT is a quasi-judicial body set
up by the Central Government to deal with appellate matters under the Income Tax Act,
1961. The ITAT functions under the Ministry of Law and Justice. There are different
benches of the ITAT for different regions having regional jurisdiction. The President of
the ITAT constitutes a bench of an ITAT from amongst the members of the ITAT. Each
bench shall consist of an accountant member and a judicial member.

3. Election Commission (EC)-

India is one of the largest democratic nations in the world, democracy here plays an
important role in this country. Also, the Election Commission of India is a humongous
body with a lot of responsibilities on its shoulders. The Election Commission of India was
formed in the year, 1950. This body, the Election Commission of India made things quite
easier for us ever since the body came into existence. The Election Commission is a
tribunal for adjudication of matters pertaining to the allotment of election symbols to
parties and similar other problems. The decision of the commission can be challenged in
the Supreme Court.
4. Foreign Exchange Regulation Appellate Board (FERAB)-
Soon after independence, the Govt. of India enacted Foreign Exchange Regulation Act in
1947, to regulate operations of foreign controlled companies in India. The Act was latter
on comprehensively amended in 1973. FERA, 1973 was enacted in wake of acute foreign
exchange shortage faced by the country at that point of time. The Board has been set up
under the Foreign Exchange Regulation Act, 1973. A person who is aggrieved by an
order of adjudication for causing breach or committing offences under the Act can file an
appeal before the FERAB. To regulate certain payments. To regulate dealings in foreign
exchange and securities. To regulate transactions, indirectly affecting foreign exchange.
To regulate the import and export of currency. To conserve precious foreign exchange.
The proper utilization of foreign exchange so as to promote the economic development of
the country.

5. Industrial Tribunal-
This Tribunal has been set up under the Industrial Disputes Act, 1947. It can be
constituted by both the Central as well as State governments. The Tribunal looks into the
dispute between the employers and the workers in matters relating to wages, the period
and mode of payment, compensation and other allowances, hours of work, gratuity,
retrenchment and closure of the establishment. The appeals against the decision of the
Tribunal lie with the
Supreme Court.
The Code provides for the constitution of Industrial Tribunals for the settlement of
industrial disputes. An Industrial Tribunal will consist of two members: (i) a Judicial
Member, who is a High Court Judge or has served as a District Judge or an Additional
District Judge for a minimum of three years; and (ii) an Administrative Member, who has
over 20 years of experience in the fields of economics, business, law, and labour
relations. The central government may also constitute National Industrial Tribunals for
settlement of industrial disputes which: (i) involve questions of national importance, or
(ii) could impact industrial establishments situated in more than one state. Members of the
National Industrial Tribunal will include: (i) a Judicial Member, who has been a High
Court Judge, and (ii) an Administrative Member, who has been a Secretary in the central
government.

6. Customs and Excise Revenue Appellate Tribunal (CERAT)-

The Government had a law enacted in 1986, to create a Tribunal empowered like a High
Court, called Customs and Excise Revenues Appellate Tribunal. Most powers of
CESTAT were to be diverted to CERAT. This Act was not operationalised due to
multiple difficulties including court cases, making an amendment necessary. This Act
was later repealed by Customs and Central Excise Laws (Repeal) Act, 2004.
 The Administrative Tribunals Act

In 1985, the Administrative Tribunal Act was passed after so many years of the
Constitutional amendment 1976. This act declares that a Central Administrative Tribunal and
State Administrative Tribunal in every state or two or more states must be there. Here is the
brief of the sections mentioned in the act.

I. Section-2 talks about the applicability of this act which would be applied to every
Government employee such as Members of armed, naval or air force of the nation,
officers or servants of the High court, and any members appointed by the house of
parliament, State Legislature, or by a union territory having a legislature, to a
secretariat staff.
II. Section-4 specifies that a tribunal may be established by giving a notification by the
central government. After taking approval from the central government, the State
Government can also form their administrative tribunal. After taking the approval of
the government, two or more states can enter an agreement into a joint administrative
tribunal.
III. Section-5 set out the tribunal’s composition that every bench shall consist of judicial
or administrative members, and a chairman. It has its principal bench in New Delhi.
IV. Section-6 talks about the qualifications for chairman, Vice Chairman, and other
members.

 Chairman: Must have been a judge of the High Court or Vice-chairman for
above 5 years or post of Secretary/ other post consisting the same pay scale as
that of secretary.
 Vice-Chairman: Must have been the High Court’s Judge for more than 2years
or secretary for above 2years or Additional secretary for more than 5 years.
 Other members:
Administrative member: Secretary post for not less than 2 years or
equivalent post in either central, At the state government pay scale not less
than an additional secretary for not less than 2 years, the person who was at
the position of the joint secretary for not less than 5 years.
Judicial Member: The person is qualified to be the Judge of the High Court
for not less than 2 years. He/ she who has/her held the post of secretary at the
department of legal affairs.
V. Section-8 clears out that The chairman and the members can hold the office for not
more than 5 years or 65 years whichever comes earlier.
VI. Section-9 talks about the resignation & removal of office that the chairman of the
member cannot be removed from the office unless and until the order is made by the
president on the ground of misbehavior or incapacity the person shall be given the
reasonable opportunity to defend himself.
VII. Section-14 throws highlight upon Jurisdiction, powers and authority of the Central
Administrative Tribunal- Matter relating to recruiting for all-India service and civil
post or in the post of defence service. It is necessary that the authority should be
within the territory of India should be controlled by the government or by society or
corporation or owned and controlled by the government.
VIII. Section-15 talks about the Jurisdiction, powers and authority of State Administrative
Tribunals- Matters relating to recruiting for all-India service and civil post or in the
post of defence service. The authority must be within the state. The authority can be
 corporations or society, controlled by the state government or owned or controlled by
t6he state government.
IX. Section-16 states about Jurisdiction, powers and authority of a Joint Administrative
Tribunal.
X. Section-21 specifies about the limitations of the administrative tribunal. That
application should be made within one year if that period expires the tribunal will still
accept it if the person mentions sufficient reason for not filing the case within three
years.
XI. Section-22 talks about the procedure and powers of Tribunals- The administrative
tribunal not bound by civil procedural Code. The tribunal shall decide their
procedures for expeditiously disposing of the cases. The tribunal has various powers
like:

 Summoning a person.
 Receiving the production of the document.
 Asking for public records.
 Reviewing the decisions.
 Setting aside the ex-parte order.
 Any other matter prescribed by the central government.
 Receiving affidavits.

RELATED CASES-

#1 Sambamurthy vs State of Andhra Pradesh6- In this case, the constitutionality of Article

371D was challenged in the court the claim was that the article is unconstitutional on the
ground that it gave the power to the state government to modify the order of the
administrative tribunal. The Court held that the Administrative Tribunal as a substitute of the
High Court held the law unconstitutional and was thus struck down.

#2 S.P. Sampath Kumar vs Union of India7- In this case, the constitutional Validity of the
Administrative tribunal act was challenged in the Supreme Court vas because it violates the
concept of Judicial review. The five-judge bench of the Supreme Court held that the act is
valid except the S. 6(1) which provided unrestricted power to the government to elect vice
chairman, chairman, and other members of the tribunal the five years was not held valid by
the court. This section of the Act was held unconstitutional.

#3 L Chandra Shekhar vs Union of India8- In this case, the Supreme Court in this case dealt
with various issues like whether Article 323A and 323 B gives the power to the Union or
state to exclude all the courts other than the Supreme Court, Whether the tribunal is acting as
an effective substitute of the High court. The Supreme Court held that the power of Judicial
review is available to the higher Judiciary. The lower judiciary cannot serve as an effective
substitute for the effective substitutes of the higher judiciary. It can act as a supplement to the
higher judiciary.

6
1987 AIR 663, 1987 SCR (1) 879.
7
1987 SCR (3) 233, 1987 SCC Supl. 734.
8
AIR 1997 SC 1125.
#4 Union of India vs R Gandhi9 - In this case, constitutionality of NCLT and NCLAT was
challenged in the Supreme Court on various grounds like Transfer of jurisdiction from the
High Court to the tribunal is violative of rule of law principle. And Provision of 1B and 1C is
unconstitutional to the constitutional provision, separation of power. The Court held that
Parliament has the power to make tribunals and tribunals don’t violate the principle of rule of
law, separation of power. It instead reduces the burden from the courts. It held that NCLT
and NCLAT tribunals are valid by law.

#5 J.B. Chopra v. Union of India 10 -It was held that since the Administrative tribunals are
meant to be substitutes of High Courts, their power of judicial review extended to power as to
decide on the constitutionality of service rules. However, soon we see a reversal of trend
leading to a lot of confusion. In M.B. Majumdar v. Union of India11 the Supreme Court
refused to extend the service conditions and other benefits enjoyed by ordinary High Court
judges to the members of these Tribunals. Three years later, in R.K. Jain v. Union of India 12,
the Supreme Court opined that these Tribunals could not be effective substitutes of High
Courts under Articles 226 and 227. We also find very clear expression of dissatisfaction of
the apex court regarding the functioning and effectiveness of Administrative Tribunals
especially with regard to their power of judicial review.

#6 Durga Shankar Mehta vs. Raghuraj Singh- The Supreme Court defined ―tribunal in the
following words: The expression ‘tribunal’ as used in the article 136 does not mean the same
thing as court but Includes, within its ambit, all adjudicating bodies, provided they are
constituted by the state and are invested with the judicial as distinguished from administrative
or executive functions.

#7 Jaswant Sugar Mills Ltd vs Lakhsmi Chand- In this case this has been held that the
Basics tests of the tribunal within the meaning of article 136 or 227 of the constitution is that
―it is an adjudicating authority vested with the judicial power of the State under a statute or
a statutory rule.
#8 Dhulabhai v. State of Madhya Pradesh- In this case it has been held that the court of law
can decide the vires of the legislation, while an administrative tribunal cannot do so.
#9 State of Orissa v. Bhagawan Sarangi- The supreme court has held that a tribunal (orissa
state administrative tribunal) which is bound by the decision of the High court.

9
Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 (India).
10
(1987) I SCC 422.
11
(1990) 4 SCC 501.
12
(1993) 4 SCC 119.
Jurisdiction of tribunals in service matters
Administrative Tribunals have existed in a rudimentary form for quite some time. In 1958, in
order to relieve the Courts, from the burden of service litigation, the Law Commission
recommended the establishment of Tribunals consisting of Judicial and Administrative
Members to decide service matters. The Central Government appointed a Committee under
the Chairmanship of Justice J. C. Shah of the Supreme Count of India in 1969, which also
made similar recommendations. In 1975, Swaran Singh Committee again recommended the
setting up of Service Tribunals. The idea of setting up of Service Tribunals is to save the
Courts from the avalanche of Writ Petitions and appeals in service matters.

This also found favour with the Supreme Court of India in Kamal Kanti Dutta & Ors. Vs.
Union of India & Ors13. It was against this backdrop that the Parliament passed the
Constitution (42nd Amendment) Act, 1976 which added Part XIV A to the Constitution of
India. Establishment of the Central Administrative Tribunal under the Administrative
Tribunals Act, 1985 is one of the important steps taken in the direction of development of
Administrative Law in India.
Article 323-A of Constitution of India enabled Parliament to constitute Administrative
Tribunals for dealing with certain matters like recruitment and conditions of service of
persons appointed to Public Services and Posts in connection with the affairs of Union or of
any State or of any local or other authority within the territory of India or under the control of
the Government of India or of any Corporation owned or controlled by the Government.
Even before Article 323-A of Constitution of India was enacted Tribunals existed in various
areas and their existence was recognised by the Constitution of India, but they were not
intended to be an exclusive forum, and therefore, they were subject to Judicial Review by the
High Courts' under Articles 226 and 227 of Constitution of India.
While Article 323-B of Constitution of India empowers the appropriate legislature i.e. both
the Parliament and the State legislatures to establish Tribunals for the adjudication or trial of
any disputes, complaints or offences with respect to matters like levy, assessment, collection
and enforcement of any tax, ceiling on urban property, elections to the Houses of Central or
State legislatures and any other matter. Parliament was further empowered to prescribe by
law the jurisdiction, power, authority and procedure of such Tribunals and also to exclude the
jurisdiction of all the Courts except that of the Supreme Court under Article 136 of
Constitution of India.
The Central Administrative Tribunal is empowered to exercise all the jurisdiction, power and
authority exercisable immediately by all courts except the Supreme Court 14. The Act does
not, however apply to the employees of the state of Jammu and Kashmir, any member of the
Naval, Military or Air Force or any other Armed Forces of the Union, officers and servants of
the Supreme Court and High Courts, Secretarial Staff of the House of People, Council
of States and state legislative assemblies and councils. Central Industrial Security Force and
Cantonment Board also do not fall under the jurisdiction of Central Administrative Tribunal.
In relation to service matters, the jurisdiction, power and authority is vested with the
Administrative Tribunals to the exclusion of various courts. Before the establishment of the
13
AIR 1980 SC 2056.
14
The Administrative Tribunal Act, 1985 § 12(1).
Administrative Tribunal for service matters, the suits for enforcement of any civil right were
entertained by the civil court15. The jurisdiction of these courts is now barred by the
Administrative Tribunal Act 198516. Furthermore, there was a provision initially for the
exclusion of all the courts except the Supreme Court under Article 136 of the
Constitution17. This provision has been amended14 after the case of Sampath Kumar v.
Union of India18 and the words ‘no court except’: a) The Supreme Court or; b) Any industrial
tribunal, labour court or other authority constituted under the Industrial Dispute Act, 1947 or
any other corresponding law for the time being in force, have been inserted.
The jurisdiction of the High Court under Articles 226 and 227 has also been barred by the
provision of the enactment19. It cannot be said that civil servants don not possess the right of
judicial review through the establishment of Administrative Tribunal by ousting the
jurisdiction of the High Court. The change made is that the employees shall first go to
Administrative Tribunal and thereafter to the Supreme Court. According to the Act, the
tribunal is empowered to pronounce judgment in civil proceedings which would be final 20
except in
cases where an appeal under Article 136 of the Constitution to the Supreme Court is
preferred.

15
Code of Civil Procedure, 1908 § 9.
16
The Administrative Tribunal Act, 1985 § 29.
17
The Administrative Tribunal (Amendment) Act, 1986.
18
A.I.R. 1987 S.C. 386.
19
A.I.R. 1950 S.C. 188.
20
The Administrative Tribunal Act, 1985 § 30.
 The Tribunals Reforms Bill 2021

Tribunals are institutions established for discharging judicial or quasi-judicial duties. That
means it has certain powers related to delivering justice and it was not in the original
constitution. It was added by the 42 nd Constitutional Amendment Act, 1976. And there are 2
articles related to it-

Article 323A deals with Administrative Tribunals. Article 323A specifically revolves around
matters of public service and may only be established by the Parliament. These tribunals are
generally set up at the National level or the State level. The tribunals set up under this Article
of the Constitution are also known as Administrative Tribunals and are further governed by
the Administrative Tribunals Act, 1985.

Article 323B deals with tribunals for other matters. Article 323B also identifies the other
matters for which tribunals may be set up by the Parliament or state legislatures. Some of the
matters as identified by the Article include the following- Taxation; Industrial and Labour
disputes; Land Reforms; The ceiling on urban property; Elections (excluding matters referred
in Articles 329 and 329A); and Foodstuff.

Finance Minister Nirmala Sitharaman introduced the bill in Lok Sabha and it was passed on
August 3. When Parliament passed the Tribunals Reforms Bill earlier, it set the stage for a
clash between the judiciary and the legislative. The Tribunals Reforms Bill, 2021 has
replaced the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.
The Bill has not only abolished five appellate tribunals which are the Film Certification
Appellate Tribunal, Airports Appellate Tribunal, Authority for Advanced Rulings,
Intellectual Property Appellate Board and the Plant Varieties Protection Appellate Tribunal.
It has also introduced changes in the terms of service of the tribunal officials. The Bill also
proposes to set up a search-cum-selection committee that will select and appoint the
Chairperson and the Members of the various tribunals. The members of the committee will be
headed by the Chief Justice of India, or a Supreme Court Judge nominated by and will have
the voting right, two Secretaries nominated by the central government, the sitting or outgoing
Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court and
the Secretary of the Ministry under which the Tribunal is constituted. The secretary will have
no voting right. For state tribunals, there will be a separate search committee. The central
government will have to decide on the recommendations of the committee within 3 months.
The Bill also limits the tenure of the Chairperson of a tribunal to four years or till he/ she
attains the age of seventy years, whichever is earlier. The members of the tribunal will have a
term of four years or till he or she attains the age of sixty-seven years, whichever is earlier.
The tribunal bills of 2021 was passed earlier also by the name of Tribunals reforms ordinance
which was introduced as a money bill because it can’t be questioned in any court of law
because the decision of it lies with the speaker of the Lok Sabha. In the case of Madras Bar
Association v. UOI21, this problem was acknowledged in this year only and it dissolves this
bill. The Madras Bar Association filed a writ petition in the Madras High Court challenging
the constitutional validity of the said amendment to the 1956 Act on the ground of legislative
incompetence and violation of the doctrines of separation of powers and independence of the
judiciary. The Constitutional Bench, in its judgement, impacted the individual tribunals,
which is also called the NTT22 Case.

In this judgment the Supreme Court particularly ordered that the Tribunal, Appellate
Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service
of Members) Rules, 2020 (“2020 Rules”) shall be amended to the effect that, inter alia,

1. the Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold
office for a term of five years
2. They shall be eligible for reappointment;
3. Other members shall hold office till they attain the age of sixty-seven years.
4. Advocates with an experience of at least 10 years shall be eligible for appointment as
judicial members in the Tribunals and that they shall be eligible for reappointment.
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.

After this judgment, the Government of India, notified The Tribunals Reforms
(Rationalisation and Conditions of Service) Ordinance, 2021 in April 2021. Section 12 and
13 of this Ordinance sought to amend Sections 184 and 186(2) of the Finance Act, 2017. The
Madras Bar Association, again approached the Supreme Court, claiming that these provisions
are ultra vires Articles 14, 21, and 50 of the Constitution of India and violate the principles of
separation of powers, independence of judiciary and should therefore be struck down. It
stated that these provisions are also in contravention to the above mentioned directions of the
Supreme Court with regards to the 2020 Rules.

The Court held that the provision (Section 12) of the Ordinance, which holds that the
eligibility criteria for appointments to the Tribunals as 50 years of age, is invalid. It reiterated
that advocates having 10 years of experience are eligible for appointment. Further, the
Supreme Court had held that the term of Chairperson of a Tribunal shall be five years or till
she or he attains the age of 70 years, whichever is earlier and that the term of a Member of
the Tribunal shall be five years or till she or he attains the age of 67 years, whichever is
earlier. Hence, the new tenure of four years for Chairperson/Member mentioned in the
Ordinance was held to be invalid as it was not in consonance with the direction of the
Supreme Court.

21
2014 SCC Online SC 771.
22
National Tax Tribunal Act, 2005.