Union government shields law on tribunal reforms in apex court

The Centre has shielded in the top Court the validity of the new tribunal reforms law, which regulates issues such as appointment and tenure of presiding and other members in tribunals, and said the “independence of the judiciary” is not a ground that can be used for testing the statutes. The Union Government, in an affidavit in the Supreme Court, said it was “confused” why the judiciary thinks that the law made by Parliament and implemented by the executive is an attack on judicial independence. The Centre's defence to the Tribunal Reforms Act, 2021, assumes significance in view of the fact that a bench headed by Chief Justice N V Ramana had termed as a "serious issue" the passage of the Bill on tribunals with the provisions, struck down earlier, without any debate in Parliament. The bench observed that it is “very upset” by the government, which, it added, is “bent upon not honouring” the orders of the court and has rather sought to overrule a judgment by enacting a “replica” of the old law. Some of the provisions of the Act under challenge include the reduction of the tenure of chairpersons and members of key tribunals from five years to four. The Act mandates their minimum age for appointment be 50 years. The new law said the Appointments Committee of the Cabinet (ACC), headed by the Prime Minister, may “preferably” make the appointment within three months of the recommendation by the Search-cum-Selection Committee (SCSC). The law said that the recommendations of SCSC to the ACC should be of only one single name per vacant post with a waitlist available. "Basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute," the Centre said. "If for any reason independence of the judiciary is treated as the basis, one could not phrase a provision by declaring that independence is removed which would ex facie sound antithetical. What is more, independence of the judiciary is not a ground which can be used for testing statutes," the affidavit said. "It has been held in a series of cases including by two Constitutional Bench decisions and by a seven judges bench of the Supreme Court that basic structure in the Constitution can only be used to test the validity of a Constitutional amendment but has no relevance when it comes to validity of a statute," it said. The Centre said the laws and statutory rules made by Parliament fall under the realm of policy. "Government equally believes that the court striking down these pure matters of policy violates the separation of powers by the judicial wing of the State," it said.